It was a victory not only for the American web surfer who uses online email and sends personal, private messages through Facebook, but for a coalition of technology firms that have urged Congress to update the 1986 Electronic Communications Privacy Act (ECPA) to more modern 2012. The coalition, which includes technology firms Apple, Google, Facebook and Twitter, have argued that consumers should have the same rights online as they do offline.
In order words, as CNET cleverly describes, law enforcement should not be able to dig through emails and private Facebook messages much like they can't search through documents stored in an office cabinet without acquiring a warrant first. To get that warrant, federal, state, and local police must establish probable cause just like they do with offline cases.
"We have to update our digital privacy laws if we want to keep up with rapid changes in technology," said Sen. Patrick Leahy, the Vermont Democrat who's the chairman of the Senate Judiciary Committee.
Naturally law enforcement groups, backed by Sen. Chuck Grassley, object to the idea of locking out law enforcement. Grassley tried to meet the Senate on middle ground by suggesting an amendment that would suspend privacy protections in "emergency" circumstances. That amendment was rejected, but still he persisted to argue, saying that Senators are "abdicating our duty if we do not examine the concerns raised by federal and state law enforcement."
"[Law officials have raised] important questions and ones we should be prepared to address [in an open process]", he said, "[not through] concerns that were raised in the media in the draft of the legislation that was leaked last week."
As stated, the public lashed out after a draft of the legislation proposed by Leahy was leaked, revealing that more than 22 federal agencies -- including the Securities and Exchange Commission and the Federal Trade Commission – would have warrantless access to e-mail and other private communications. Leahy abandoned his draft and did not offer it up for a vote, CNET said. Instead, it has been applied to a proposed amendment to the Video Privacy Protection Act which will head to the Senate for voting next year.
One of the biggest fears about the new legislation passed is that it will slow down criminal investigations. "The proposed notice provisions would create unnecessary risks to investigations and undue burdens on law enforcement agencies given the potentially large number of cases in which delays would need to be sought and renewed," stated a letter signed by the National Sheriffs' Association, the National District Attorneys' Association, and other law enforcement groups.
CNET reports that the legislation approved by the Judiciary Committee isn't a complete win for the coalition. Service providers must now inform law enforcement in advance if they plan to tell customers that they are targets of a warrant order, order or subpoena. Police can also delay notifications of being served for two 180-day periods – the original bill only allowed for two 90-day periods.
