US Senate Ready to Wipe Out Email Privacy in America

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By Renato Ramírez

Chairman of the Board and CEO, IBC-Zapata

&

James C. Harrington

Director, Texas Civil Rights Project

The U.S. Senate will soon vote on a law that would gravely undermine Americans' privacy and give expanded, unbridled surveillance over people's e-mails to more than 22 government agencies.

Sen. Patrick Leahy, the influential Democratic chair of the Judiciary Committee, has capitulated to law enforcement agencies, including the U.S. Justice Department, and is sponsoring a bill, authorizing widespread warrantless access to Americans' e-mails, as well as Google Docs files, Twitter direct messages, and so on, 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.

Leahy's bill would only require the federal agencies to issue a subpoena, not obtain a search warrant signed by a judge based on probable cause. It also would permit state and local law enforcement to warrantlessly access Americans' correspondence stored on systems not offered “to the public,” including university networks.

Even in situations which still would require a search warrant, the proposed law would excuse law enforcement officers from obtaining a warrant (and being challenged later in court) if they claim an “emergency” situation.

Not only that, but a provider would have to notify law enforcement in advance of any plans to tell its customers they've been the target of a warrant, order, or subpoena. The agency then could order the provider to delay notification of customers, whose accounts have been accessed, from three days to “ten business days” or even postpone notification up to 360 days.

Agencies that would receive civil subpoena authority for electronic communications include the Federal Reserve, the Federal Trade Commission, the Federal Maritime Commission, the Postal Regulatory Commission, the NLRB, OSHA, SEC, and the Mine Enforcement Safety and Health Review Commission. There is no good legal reason why agencies like these need blanket access to people's personal information with a mere subpoena, rather than a warrant.

One might expect better of Leahy, given his liberal credentials; but he has been quite disappointing. In fact, he had a hand in making the Patriot Act bill less protective of civil liberties. Nor has the Administration been helpful in this regard, quite to the contrary. Expectations of “law and order” types might not be as high in terms of protecting civil liberties, but they should not be as unsatisfactory as they are with proponents of constitutional freedoms.

The revelations about how the FBI perused former CIA director David Petraeus' e-mail without a warrant should alarm us all, who have less power and prestige than he did.

If the Fourth Amendment is to have any meaning, it is that police must obtain a search warrant, backed by probable cause, before reading Americans' e-mails or other communications. If we are to preserve our constitutional protection from warrantless searches, unreviewed by the courts, we need to let our U.S. Senators from Texas hear from us immediately and resoundingly.

We cannot allow the government to undermine our rights, bit by bit, even in the name of national security, which too often is the mantra it so casually uses. As Ben Franklin said, those who give up freedom in the name of security deserve neither.

This abridgement of our fundamental rights affects us all — conservative, liberals, and libertarians alike. Our allegiance to the Constitution must be non-partisan. Write or call your Senators — now.

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