Patrick Leahy Ready To Cave To Law Enforcement: Has ECPA Reform Amendment To Include Loopholes For Warrantless Spying

from the lame dept

See update at the bottom...

Back in September, we wrote about how Senator Patrick Leahy had introduced a really good bill for ECPA reform. ECPA (the Electronic Communications Privacy Act) is an incredibly outdated bill concerning (as it says) the privacy of electronic messages. It was written in a time (the mid-1980s) before everyone had email, let alone everyone used web-based, cloud-stored email. And thus, it has weird provisions, such as considering that messages stored on a server for more than 180 days are "abandonded" and thus subject to very little privacy protections. And that's just one of many, many problems with ECPA, which treats all kinds of messages differently.

Leahy's reform was pretty straightforward: it basically said that if the government wants to see your electronic info, it needs a warrant. This seems completely reasonable and something that probably should be considered the law already if the 4th Amendment were respected. Of course, almost immediately after he introduced his reform package, we noted that the law enforcement community had freaked out over the bill, saying that if law enforcement had to actually, you know, justify its activities to a judge, it might have "adverse impact" on investigations (you know, like reading the love letters of generals).

We noted that those concerns led Leahy to delay the markup on the bill. However, it had been widely reported that the bill was back on track for late next week. And... today comes the bombshell. According to Declan McCullagh, Leahy is planning a manager's amendment to the bill that will effectively give large parts of the federal government an exception to the warrant requirement and let them snoop on your email with just a subpoena (i.e., no judicial oversight).

Leahy's rewritten bill would allow more than 22 agencies -- including the Securities and Exchange Commission and the Federal Communications Commission -- to access Americans' e-mail, Google Docs files, Facebook wall posts, and Twitter direct messages without a search warrant. It also would give the FBI and Homeland Security more authority, in some circumstances, to gain full access to Internet accounts without notifying either the owner or a judge.

In other words, this went from being a much needed bill to a dangerous bill very quickly. That's extremely unfortunate. ECPA reform is needed, but not this kind of reform. From what we've heard, while there is this new manager's amendment, it is not certain that Leahy will introduce this version, and may still go with his old version (or a modified version that still requires warrants). It seems important to let folks in Congress know that this possible amendment, allowing warrantless spying, is not acceptable.

Update: There's some debate over how serious this proposal was. A new report claims that this amendment wasn't likely to be seriously considered, even though it does exist. Declan McCullagh is standing by his story, and saying that the claim that this amendment won't be seriously considered is in response to the public outcry about it.

Filed Under: 4th amendment, ecpa, email, patrick leahy

Law Enforcement Officials Freak Out About Possibility Of Having To Get Warrants To Read Your Email

from the bill-delayed dept

We recently noted that Senator Leahy had attached his mostly good ECPA (Electronic Communications Privacy Act) reform bill to another bill reforming the VPPA (Video Privacy Protection Act). The ECPA reform would update a decades-old law that law enforcement has interpreted to more or less mean they don't need a warrant to read your online email. Leahy's update would require a warrant. This is a good and important reform that should be supported. But, of course, law enforcement freaked out and it appears that Leahy has backed down, delaying hearings on the bill for now (funny how he really wanted to push through PIPA despite massive public protests, but a few law enforcement people get upset about respecting the 4th Amendment and things get delayed). From Declan McCullagh's coverage:

The delay comes two days after a phalanx of law enforcement organizations objected to the legislation, asking Leahy to "reconsider acting" on it "until a more comprehensive review of its impact on law enforcement investigations is conducted." The groups included the National District Attorneys' Association and the National Sheriffs' Association.

[....] A person participating in Capitol Hill meetings on this topic told CNET that Justice Department officials have been expressing their displeasure about requiring search warrants. The department is on record as opposing such a requirement: James Baker, the associate deputy attorney general, has publicly warned that requiring a warrant to obtain stored e-mail could have an "adverse impact" on criminal investigations.

Of course it would have "adverse impact" on criminal investigations. So do lots of things -- but those are the rules law enforcement plays by in a free society. It's not built to make law enforcement's life easy.

Either way, it appears that this bit of ECPA reform will get pushed off once again. Hopefully, when it comes back, it won't be watered down.

For what it's worth, both the EFF and the ACLU -- who strongly support ECPA reform similar to what Leahy has been proposing -- have also not been that happy with how Leahy introduced this bill, because they both oppose the changes to the VPPA, which they're afraid will weaken privacy for people. This is a (somewhat rare, but not unprecedented) situation where I disagree with both of those organizations. The VPPA was a specific and broad carve-out to deal with a single situation (bork bork bork). I think it's reasonable to update it to allow for things like letting people choose to let Netflix and social networks share info on what movies they've watched -- just like the can choose to show what music they listen to. I don't necessarily believe that it makes sense to link the VPPA to ECPA reform, but I don't think that passing the VPPA reform is so problematic that it should stop ECPA reform. Of course, if law enforcement has its way (and so far, that seems to be the case), ECPA reform might never happen. Is it really worth worrying about how you can choose to share your Netflix movies on Facebook while the Justice Department feels it can snoop broadly through your Gmail?

Filed Under: 4th amendment, ecpa, patrick leahy, privacy, vppa, warrants
Companies: netflix

Senator Leahy Brings Back Bill That Would Require Warrants When Gov't Snoops Through Servers For Your Info

from the ecpa-reform dept

The Electronic Communications Privacy Act (ECPA) is ridiculously outdated. It was passed in 1986, and to this day provides the (incredibly inconsistent and difficult to apply) rules for what sort of privacy electronic communications have, even though the technology has changed drastically. This has created some wacky consequences, including that (for example) emails have different privacy protections when an email is being written compared to when it's being sent compared to when it's been received compared to when it's been read compared to when it's been archived. As an example, since most messages did not stay on servers for very long (they were downloaded and deleted), the law decided that messages stored on a server for more than 180 days were considered "abandoned" and subject to even lower standards of privacy protections. Think about that the next time you open your Gmail account... ECPA has lots of problems, but the basics are this: it certainly didn't anticipate an era where most of the things we do were in the so-called "cloud," and it takes almost no account of the expectation of privacy.

Last year, Senator Pat Leahy introduced an ECPA reform bill that was mostly good. It basically said that if the government wants to get access to your data on a server, it first needs to obtain a warrant -- something that is sorely missing today. There were some loopholes that concerned us, but for the most part, it was a very big improvement. And it went nowhere. Now, many folks around here will remember Senator Leahy for being the driving force in the Senate behind PIPA -- and you may be quick to want to dismiss his actions here. But just because he's (strongly) supported that bad bill, it doesn't mean that everything he introduces has been similarly problematic.

Leahy is trying again to move forward with his ECPA reform plan, this time attaching it to an update of the Video Privacy Protection Act (VPPA). We've discussed the VPPA before. The short version is that it was a special law that bars the release of video rental info, passed in response to Supreme Court nominee Robert Bork having his video rental history leaked. But, of course, in this modern age where people automatically stream their music playlists or book purchases to Facebook... Netflix is left out in the cold, because the VPPA doesn't allow them to do the very same thing. So, there's an update to the VPPA making the rounds that basically changes the law to let you tell the world what you streamed from Netflix last night (if you so choose to share that kind of info).

That bill has a chance to actually go somewhere, and it looks like Leahy sees it as another chance to see if he can get his ECPA reform package through the Senate. While it's no secret that I've had my differences with various Leahy proposals in the past, this is a reform that is badly needed to protect our privacy from government intrusion. Requiring a warrant to access your info in the cloud is a common sense move that's long overdue.

Filed Under: cloud computing, ecpa, patrick leahy, privacy, warrants

Holy Conflict Of Interest! Tell Congress That The Public Good Is More Important Than Their Chance To Cameo In Batman

from the check-it-out dept

We recently wrote about the fact that PIPA sponsor and head of the Senate Judiciary Committee Senator Patrick Leahy has received yet another cameo appearance in the latest Batman flick. We're sure it's because of his acting skills, rather than his ability to pass legislation that favors Time Warner (who -- coincidentally, of course -- is a major contributor to his campaigns). In response to this story, the good folks at Demand Progress have set up HolyConflictOfInterest.com with an original comic, "The Adventures of Leahy & Time Warner": Click through not just for a larger version, but also for tools from Demand Progress that let you tell your elected officials that you don't appreciate such conflicts of interest.

Update: By the way, we're hearing that the MPAA hosted a "special screening" of the new Batman movie for members of Congress and their staff. Now, that would normally run afoul of gift giving guidelines... but they worked around that by spending the first 15 minutes "educating members and staff on important issues" (take a guess what those might be).

Filed Under: batman, cameo, conflict of interest, patrick leahy, politics
Companies: warner bros.

PIPA Author Senator Leahy Gets His Reward: A Part In 'The Dark Knight Rises'

from the well-there-you-go dept

I heard from more than a few people that Senator Patrick Leahy would never be convinced of his distorted views on copyright for one key reason: he loves the way Hollywood puts him in movies -- with Batman being a particular infatuation. As you can see on Leahy's IMDB page (yes, he has one), he appeared in both the Batman TV series and The Dark Knight. Now, it's being reported that he's also making an appearance in the upcoming The Dark Knight Rises, where he gets to appear in a scene with Christian Bale. Of course, normally you might think that this kind of thing, something that Leahy is clearly excited about and proud of, would count as a "gift" and potentially run afoul of Senate ethics rules. It's not as if the studio is putting him in these films because of his acting chops...

Filed Under: batman, christian bale, patrick leahy, pipa, the dark knight rises

Senator Leahy Wants To Give At Least $5 Million To State Department To 'Combat Piracy'

from the spread-the-money-around dept

Last week, we wrote about a proposal in Congress to give ICE (part of Homeland Security) at least another $10 million for the next year to continue its program of censoring websites in the name of "stopping piracy." Of course, when Congress and Hollywood get together, they never put all their eggs in just one basket. So, it should come as no surprise that in another appropriations bill, this time for the State Department, and put forth by Senator Patrick Leahy -- who also introduced PIPA -- there's another chunk of "anti-piracy" cash. The bill sets forth $899,600,000 for "civil judicial and security programs." But, amazingly, the only program that is specifically called out with a specific amount is to "combat piracy."

CIVILIAN JUDICIAL AND SECURITY PROGRAMS.—$899,600,000 for assistance for rule of law, justice, corrections, anti-crime, cyber crime, civilian police, and security sector reform programs, of which not less than $5,000,000 shall be made available to combat piracy of United States copyright materials, consistent with the requirements of section 688 (a) and (b) of the Department of State, Foreign Operations, and Related Programs Appropriations Act, 2008

If you're curious about sections 688 (a) and (b) as mentioned in this bill, you can see them here. They just authorize the State Department to "provide training" to foreign judges and prosecutors on intellectual property law. That is, it's part of the US's official IP propaganda program to convince foreign judges and prosecutors that strict interpretations of IP laws are the only way to go.

A couple years ago, we wrote in more detail about how the State Department spends these funds, and it's not pretty. Basically, we send copyright maximalist lawyers to other countries -- countries that have their own copyright laws -- and tell judges and federal prosecutors there that they need to enforce US-style copyright maximalist laws.

I'm really not sure how that's an appropriate use of taxpayer money.

Filed Under: homeland security, ice, patrick leahy, pipa, propaganda, state department

Senator Leahy Still Insisting That SOPA/PIPA Are 'Needed'

from the out-of-touch dept

It appears that Senator Patrick Leahy has learned absolutely nothing from the public outcry over his ridiculously overreaching PROTECT IP Act (PIPA). At a Senate Judiciary Committee hearing, in which the White House IP Czar, Victoria Espinel, suggested that perhaps the "problem" was solving itself via voluntary action, Senator Leahy continued to insist that legislation like PIPA was needed:

“Voluntary efforts are wonderful and I am hoping the voluntary efforts will give us some confidence for the legislation we need, because ultimately we still need legislation.” Leahy said.

This is really ridiculous. He isn't just saying that PIPA is needed, but he's arguing that the market working these things out on its own is evidence to support the need for legislation. How does that make any sense at all? What's clear is that Leahy still doesn't understand why PIPA was defeated or why there was so much concern (and so little legitimate rationale) for the legislation in the first place.

Filed Under: patrick leahy, pipa, senate judiciary committee, sopa, victoria espinel

Senator Leahy Hands Republicans A Gift By Giving Them Credit For Delaying Vote On PIPA/SOPA

from the do-these-people-have-no-clue? dept

We've noted how intellectual property issues are historically non-partisan. Sometimes, that's good, because it means that debates on the issues don't fall into typical brain dead partisan arguments. Sometimes, it's bad, in that it basically means both Republicans and Democrats are generally really bad on IP issues... happy to give industries greater and greater monopoly rights for no good reason. However, we noted an interesting thing happening on the way to the collapse of PIPA and SOPA: the Republicans were first to come together as a party and decide to speak out against these bills, recognizing the groundswell of public interest. That resulted in Republican leadership coming out against the bills, and Republican Presidential candidates all rejecting the approach in the bill. The Democrats, who have traditionally been considered more "internet friendly," simply couldn't bring themselves to go against Hollywood and unions -- two regular allies.

However, as many more net savvy Democrats have explained, this appears to be a major miscalculation on the part of Democratic party leadership -- potentially losing an entire younger generation of voters to the Republicans. Already, mutliple strategists have been suggesting that the Republican Party use this as a chance to cozy up with Silicon Valley, despite its typically "blue" leanings (though, generally with a strong libertarian bent). It certainly appears that the Republicans are ready to do just that. House majority leader, Eric Cantor recently tweeted about meeting with Sergey Brin.

The Democratic leadership, however, still doesn't seem to recognize the importance of the tech community and the wider internet. Rather than learning anything from what happened last week, PIPA sponsor Senator Leahy is actually trying to blame the Republicans for killing PIPA. It's (yet again) an amazingly tone deaf response. It's as if he's pushing the internet and the tech community right into the Republicans' arms. Perhaps he's making a bet that those constituencies don't matter as much as Hollywood... but that seems like a pretty risky bet to make.

Filed Under: copyright, democrats, patrick leahy, pipa, politics, protect ip, republicans, sopa

Patrick Leahy Still Doesn't Get It; Says Stopping PIPA Is A Victory For Thieves

from the time-to-educate-yourself dept

In a petulant, angry and totally uninformed rant, Senator Patrick Leahy whines about the vast majority of the public speaking out against his terrible Hollywood protectionism bill that attacked free speech, the internet and online security. He does so by, yet again. making things up. Let's detail the problems with Leahy's statement:

The United States Senate has identified a problem directly affecting American jobs, American workers and American consumers.

Actually, it has not. It has identified an issue -- but it has not correctly diagnosed the real problem. It sees a symptom -- infringement -- and incorrectly assumes that the problem is lack of regulation or law enforcement. That's wrong and there is no evidence to support those claims. Instead, the problem is the failure of some big industries to adapt with smarter business models. Instead, they're focused on propping up artificial scarcity in a market where such scarcities don't work. The end result is infringement -- not because there's a legal problem -- but because there's a service problem. The companies are not giving people what they want, in a format they want, in a convenient manner at a good price. When you understand that, the solutions become obvious. You don't pass a new law -- you have businesses adapt and innovate. And in that way, everyone wins.

As for the "jobs, workers and consumers," again, there has been no credible evidence that any jobs are at risk. In fact, in looking at the data, it shows that jobs in making movies and in the overall entertainment field continue to rise at a healthy clip. Meanwhile, consumers are living in an astounding renaissance of content. More movies are being produced than ever before. More music. More books. More everything. That's something we should be celebrating.

When I first came to Congress, it was the practice of the Senate to debate competing ideas to address such a problem; regrettably, that is not the practice today.

Exactly. Nowhere in any of this did Congress actually debate the problem as outline above. Instead, it simply took the language the MPAA gave them, rushed out a bill, held no hearings on it, did a seven-minute markup off the floor with no recording or discussion, and insisted the bill was perfect. To blame everyone else for the lack of debate here is obnoxious. Leahy has one person to blame for a lack of debate on PIPA: himself.

Furthermore, if he wanted debate, there was a ton of debate where he should have gone in the first place: online. The public (you know, the people Leahy is supposed to represent) were absolutely discussing it and debating it online. Leahy was free to join in. He did not. So, forgive me for saying that the suggestion that debate was somehow blocked here is absolutely ridiculous.

The Senate Judiciary Committee unanimously reported the PROTECT IP Act in May.

Again, with no hearings, no debate, no discussion. It was a seven minute session that wasn't recorded or available to the public. That's a sign that the fix is in, not that the public is being represented.

Since then, I have worked with both Senators and stakeholders to identify concerns and find meaningful ways to address them.

No, you didn't. That was seven or eight months ago, and no changes to the bill have been offered at all. In fact, when many in the tech community reached out to you, you ignored us and accused us of just representing Google. When many online users reached out to you, you ignored them. When tech experts complained about the security implications of the bill, you ignored them. We know you talked to stakeholders in Hollywood. But everyone else you kept out. The only time you finally admitted that you would be willing to change something was after the tide turned and after the White House told you that DNS blocking was unacceptable. If you were listening to concerns you would have offered a manager's amendment months ago. You did not. You have not been working with any stakeholders other than Hollywood.

Only when the Senate considers this legislation can we do so.

Simply not true and you know it. Moving forward with a bad bill based on a bad premise and "fixing it later" is no way to legislate.

In the meantime, more time will pass with jobs lost and economies hurt by foreign criminals who are stealing American intellectual property, and selling it back to American consumers.

[citation needed]

I remain committed to addressing this problem; I hope other members of Congress won't simply stand on hollow promises to find a way to eliminate online theft by foreign rogue websites, and will instead work with me to send a bill to the President's desk this year.

Translation: PIPA will be back and it will be back soon, because I'm a stubborn, totally out of touch Senator who likes it when Hollywood puts me in movies.

Can Senator Leahy answer the simple question that has been asked of supporters of these bills time and time again: which sites are the problem? Which sites can't be dealt with under existing legislation? What is the actual evidence of the problem?

I understand and respect Majority Leader Reid’s decision to seek consent to vitiate cloture on the motion to proceed to the PROTECT IP Act. But the day will come when the Senators who forced this move will look back and realize they made a knee-jerk reaction to a monumental problem.

As opposed to a knee-jerk, uninformed response to Hollywood donating tons of money to your re-election campaign? Actually listening to your constituents, understanding the issues and being concerned about overly broad bills with tremendous collateral damage? Apparently Senator Leahy doesn't want you to do that.

Somewhere in China today, in Russia today, and in many other countries that do not respect American intellectual property, criminals who do nothing but peddle in counterfeit products and stolen American content are smugly watching how the United States Senate decided it was not even worth debating how to stop the overseas criminals from draining our economy.”

No. Actually, if you've read the actual reports about what's happening in China and Russia, they suggest that people there are impressed with how real democracy works and can make a difference against corrupt politicians.

As for the actual criminals, they were never scared of this bill anyway. Everything in it was easy to get around.

What's really troubling is that Leahy has yet to acknowledge the public speaking out. He has yet to acknowledge that there were very real concerns about free speech, about internet security and about collateral damage. He still wants to frame this as a Mom and Apple Pie discussion about American values... while ignoring what the American public actually has said. Now that's something to be frightened about.

Either way, be clear on one thing: Leahy is not giving up, and it's very likely he'll be back with a new PIPA before long.

Filed Under: patrick leahy, pipa, protect ip, sopa

The Internet Wins: PIPA & SOPA Delayed

from the there-we-go dept

The writing has been on the wall for a long, long time, but now it's finally official. Harry Reid has announced that he will not move forward with PIPA and Lamar Smith has announced the same thing about SOPA. Both are listed as "delayed" and there's always a chance that they will come back in some form (potentially even nastier), but hopefully those on Capitol Hill have learned a big lesson about trying to mess with the internet... and what happens when you cut backroom deals to help one industry at the expense of the public.

Filed Under: blackouts, internet, lamar smith, patrick leahy, pipa, protect ip, protests, sopa