This Morning’s Story/Non-Story of E-mail Privacy Reform

This morning, Declan McCullagh posted a surprising story at CNET indicating that the Senate Judiciary Committee was about to vote on a law that would expand government power to obtain e-mails. The story began:

A Senate proposal touted as protecting Americans’ e-mail privacy has been quietly rewritten, giving government agencies more surveillance power than they possess under current law, CNET has learned.
Patrick Leahy, the influential Democratic chairman of the Senate Judiciary Committee, has dramatically reshaped his legislation in response to law enforcement concerns, according to three individuals who have been negotiating with Leahy’s staff over the changes. A vote on his bill, which now authorizes warrantless access to Americans’ e-mail, is scheduled for next week.

The story received an extraordinary amount of attention this morning, including a banner headline on the Drudge Report. And it caused a lot of consternation and surprise among those who follow e-mail privacy issues on the Hill. No one knew this was coming, and the trend has been the opposite: Senator Leahy has supported a bill that would enhance e-mail privacy, adding a universal warrant requirement and a notice requirement. Markup up is scheduled for next week in the Senate Judiciary Committee. But where was this new language expanding government power? No one had heard of it or seen it.

It now seems that the CNET report was just erroneous, or at least based on a major misunderstanding. When Declan’s report was posted, Senator Leahy’s Twitter account quickly responded that Leahy did not endorse the changes that Declan had claimed. Kashmir Hill helpfully explained:

The version of the bill that Declan McCullagh excerpts in his report appears to be one of many that have been drafted and passed around, but is not a version that would be considered seriously at a hearing to review the bill next week.

“Senator Leahy does not support broad carve outs for warrantless searches of email content,” says a Senate Judiciary aide. “He remains committed to upholding privacy laws and updating the outdated Electronic Privacy Communications Act.”

A person who has been privy to conversations about the impending bill intended to update privacy protections around digital communications for the modern age said that this was a “snapshot of a discussion point” and that it’s inaccurate to say it’s the version being pushed forward. This particular draft of the bill incorporates amendments suggested by Senator Chuck Grassley who has expressed concern that too much privacy protection for our email could negatively impact safety tasks.

This afternoon, Declan has a new story up suggesting that he didn’t get it wrong. According to Declan, Senator Leahy had quietly supported that proposal but immediately caved in response to Declan’s first article:

Sen. Patrick Leahy has abandoned his controversial proposal that would grant government agencies more surveillance power — including warrantless access to Americans’ e-mail accounts — than they possess under current law.
The Vermont Democrat said today on Twitter that he would “not support such an exception” for warrantless access. The remarks came a few hours after a CNET article was published this morning that disclosed the existence of the measure.
A vote on the proposal in the Senate Judiciary committee, which Leahy chairs, is scheduled for next Thursday. The amendments were due to be glued onto a substitute (PDF) to H.R. 2471, which the House of Representatives already has approved.
Leahy’s about-face comes in response to a deluge of criticism today, including the American Civil Liberties Union saying that warrants should be required, and the conservative group FreedomWorks launching a petition to Congress — with more than 2,300 messages sent so far — titled: “Tell Congress: Stay Out of My Email!”
A spokesman for the senator did not respond to questions today from CNET asking for clarification of what Leahy would support next week.

Whether Leahy actually had that view and immediately caved, or Declan’s first story was just wrong, it seems that the end result, after all the outrage and traffic to CNET, is that Senator Leahy doesn’t support the language after all. Either way, it will be interesting to see what happens at next week’s markup. Stay tuned, as always.