Washington Markup

Warrant for Email? An Update

By Chris Calabrese, Legislative Counsel, ACLU Washington Legislative Office at 4:22pm

Last Thursday we moved half a step closer to legislation requiring police to get a warrant before viewing personal email or other private electronic communications, such as documents and photos stored in the cloud (with Google, Yahoo or any other provider).  For more background on the amendment see here; for explanation of why it’s a half a step and what comes next please keep reading.

If intricacies of legislative process don’t interest you, the upshot is that we need to continue to ask Congress to support Senator Patrick Leahy’s (D-VT) amendment to the Electronic Communications Privacy Act (ECPA), a 25-year-old law that specifies how the government can access Americans’ electronic communications.  Please click here to take action.

Last week the Senate Judiciary Committee adopted on a voice vote the amendment offered by the Chairman of the Committee, Sen. Leahy, to update ECPA, but did not mark it up out of the committee.  In essence the legislative action before the committee was a two-step process: the committee had to amend legislation sent over from the House and then have the committee formally approve that legislation to send it to the Senate floor.  The committee took the first step but not the second.

Chairman Leahy didn’t make public why he didn’t push for full markup but it likely has to do with the complexity of ECPA and the timing of the Senate calendar.  Because ECPA governs all electronic communications and affects police practices nationwide, staff and members likely wanted to make sure that they understood every change before marking it up.

In addition there were some late letters (one, two and three) from police and law enforcement associations raising concerns about the legislation.  While the ACLU and our coalition partners believe the concerns raised by these letters are largely unfounded (the Center for Democracy and Technology posted a great rebuttal), advocates for the bill and committee staff didn’t have time to do a full explanation to staff and Senators before the markup.  These law enforcement letters were also counterbalanced by a fantastic letter from an array of civil rights groups talking about why ECPA reform is so critical for the communities they represent.

Finally, the markup was occurring as the Senators were preparing to leave DC to start their final campaign push: Senator Leahy was likely concerned that if Republicans had numerous amendments it might extend the mark up to a second day – something that would have to be pushed back until after the election (the next time the Senate was back in session).  So he likely considered it more logical to move the entire process back, do more member education and then be poised to do a markup in November.

However, the good news in all of this is that the Chairman was able to adopt his amendment.  While it was on a voice vote so Senator’s individual votes were not recorded, it almost certainly means he has a majority in support of the overall amendment.  That’s why we count it half step forward.  While we didn’t get it as far as we wanted, we hopefully have the support to do so in November.

Get Involved

It's Time to Modernize Our Privacy Law
In the meantime we need to keep letting the committee know that we support the Leahy amendment.  Thanks to everyone who has already taken action – if you haven’t yet (or want to add additional reasons for support in a new email!) please click the link to the right.

Stay tuned for more details, and help us spread the word about why ECPA needs an update by sharing this video with your friends.

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