Many civil libertarians refused to vote for President Barack Obama given his dismal record in the expansion of the security state, surveillance law, and assertions of unchecked executive power. The Administration went into radio silence on such issues during the campaign in an effort to win back liberals (as they did on medical marijuana) only to announce after the election that they would resume the same policies. The Democratic leadership has shown the same duplicity on civil liberties for years — including hiding knowledge of the Bush torture program and surveillance programs as well as blocking any meaningful investigations into those alleged crimes. Now, some Democrats have reportedly put that hypocrisy on public display again. Senator Patrick Leahy introduced the bill which, as originally written, required warrants for the reading of emails and was heralded by Democrats during the campaign as their showing of fealty to privacy and civil liberties. The Justice Department then took the bill and flipped it to serve as a sweeping denial of privacy rights . . . and some Senators are pushing on passage now that the election is over. The bill includes warrantless access to university email systems.
The re-written bill now authorizes warrantless access to Americans’ e-mail for over 22 federal agencies with only a subpoena and no probable cause. State and local agencies will have access to email system, including university emails. Internet providers will have to give notice if they are thinking of informing customers of access given to such agencies. Such notification can be postponed by up to 360 days. While not speaking for his Democratic colleagues, Leahy says that he does not support some of the exceptions. Leahy was once an ally for civil libertarians but is now viewed with great suspicion given his authorship of the 1994 Communications Assistance for Law Enforcement Act as well as the Protect IP Act. An article in The New Republic concluded Leahy’s work on the Patriot Act “appears to have made the bill less protective of civil liberties.” He also inserted controversial portions of the Patriot Act. Leahy however insists that he will oppose rollbacks. Yet, the Justice Department has objected to protections in the bill according to reports and some Senators are pushing for the restrictive version of the bill. Leahy’s staff says that he will push a draft closer to the original in committee. [Update: CNET is standing by its story
and says that Leahy only backdown after criticism following its story and that Leahy is abandoning amendments of his own making].
There is no denial of the opposition to the privacy protections by the Administration.
However, the Obama Administration is quoted as objecting that privacy protections would have an “adverse impact” on national security investigations. Democratic members doing the bidding of the Administration will find likely allies in the GOP, including Senator Chuck Grassley who has warned about the dangers of too much privacy.
The control of the security establishment over both White House and Congress appears now completely unchecked and unabashed. After securing reelection, President Obama wasted no time in returning to his prior record of disregarding privacy and civil liberties concerns. Once again, both the media and liberals are muted in any response when the same re-writing of the bill would have produced outcries under the Bush Administration. Of course, Obama can certainly point out that liberals should have had no illusions. On torture, military tribunals, surveillance, undeclared wars, and other issues, Obama made himself painfully clear. His campaign was one of personality over principle and only the personality remains.
[UPDATE: after the CNET story gained national attention, Leahy’s people went into full action in denying that Leahy supports warrantless access to email communications. However, there is still no denial of the quoted Administration officials opposing the privacy protections. Moreover, there is confirmation that a number of versions — including some with these exceptions to the warrant requirement — are being circulated. The bill can be changed in Committee or on the floor. Likewise, if the civil liberties community rallies to oppose warrantless searches, the Administration could seek to kill the bill or gut the provision to leave the status quo.]
Source: CNET
It is so curious that Leahy has sometimes quietly taken on the worst civil liberties cases. He backed SOPA and connived with the just as bad offspring when it failed. Now this terrible bill. Then drops out of sight when he gets any scrutiny or attention.
What are they trading to get a Vermont home boy to even try to sneak these things by quietly, if that is what he is doing. Who knows?
Hephaestus:
“Yeah Mittens would have been just as bad…although a slightly different bad; like 2 venn-diagram circles of almost pure suck overlapping 80%, with 20% of each being their own unique type of bad.
The net effect nowadays; whoever wins, we lose…especially on civil liberties.”
**
JT:
“His campaign was one of personality over principle and only the personality remains.”
—————————————–
Nicely stated Hephaestus.
Buyers remorse? Oh HELL naw’.
The election wasn’t about the 80% and hasn’t been since 2004. It’s that other 20% of difference that this election was about and that 20% of difference does have substance. Reading this blawg before the election made that pretty apparent. Professor, surly you read your own blawg? 🙂
I have been around long enough to know that bills are written by staffers, often under pressure from….somewhere. However, it seems to me that a Senator ought to READ what is being introduced under his or her name.
Gene H.
“Ignoring the monster doesn’t make it go away.
It makes it easier to sneak up on you.”
Awesome. True. Thank you. Leahy is done I hope, but the damage will continue. Way to go Pat. YOU BIG DI**. CK
BrooklinBridge,
SOYLENT GREEN IS PEOPLE!!!! .
If people don’t give a eff .. eff them. too bad the rest of us gets effed too.
Life as it was, life as it is , life as it will be. DUMB EFFERS!!!
myself included, I wanted Obama over Romney. ….SIGH…
http://www.leahy.senate.gov/press/section-by-section-breakdown-of-senator-leahys-ecpa-amendment
Section By Section Breakdown Of Senator Leahy’s ECPA Amendment
November 20, 2012
The rumors about warrant exceptions being added to ECPA are incorrect. Many have come forward with ideas for discussion before markup resumes on my bill to strengthen privacy protections under ECPA. As normally happens in the legislative process, these ideas are being circulated for discussion. One of them, having to do with a warrant exception, is one that I have not supported and do not support. The whole thrust of my bill is to remedy the erosion of the public’s privacy rights under the rapid advances of technology that we have seen since ECPA was first enacted thirty years ago. In particular, my proposal would require search warrants for government access to email stored by third-party service providers – something that of course was not contemplated three decades ago.
[The following is the text of the amendment Senator Leahy introduced in September 2012.]
LEAHY SUBSTITUTE TO H.R. 2471 SECTION BY SECTION
The substitute bill clarifies that video tape service providers may obtain customer consent to share video viewing information on an ongoing basis and that such consent may be given via the Internet. The substitute also updates the Electronic Communications Privacy Act to enhance consumer privacy and meet the new privacy challenges posed by cloud computing and other new technologies.
TITLE I – VIDEO PRIVACY PROTECTION
SECTION 101 — SHORT TITLE.
This section designates the title as the Video Privacy Protection Act Amendments of 2012.
SECTION 102 – VIDEO PRIVACY PROTECTION ACT AMENDMENT.
Section 102 amends title 18, United States Codes, section 2710(b)(2) to clarify that video tape service providers may obtain a customer’s informed, written consent to share video viewing information on an ongoing basis and that such consent may be obtained via the Internet. The provision includes a requirement that video service providers provide their customers, in a clear and conspicuous manner, with the opportunity to withdraw the consent given to share video viewing information at any time.
TITLE II – ELECTRONIC COMMUNICATIONS PRIVACY
SECTION 201 – SHORT TITLE.
This section designates the title as the Electronic Communications Privacy Act Amendments Act of 2012.
SECTION 202 – CONFIDENTIALITY OF ELECTRONIC COMMUNICATIONS.
Section 202 amends title 18, United States Code, section 2702 (the Electronic Communications Privacy Act or “ECPA”) to prohibit an electronic communication or remote computing service provider from voluntarily disclosing the contents of its customer’s email or other electronic communications to the Government. There are limited exceptions to this prohibition under current law, including, customer consent and disclosure to law enforcement to address criminal activity.
SECTION 203 – ELIMINATION OF 180 DAY RULE; SEARCH WARRANT REQUIREMENT FOR CONTENT; REQUIRED DISCLOSURE OF CUSTOMER RECORDS.
Section 203 amends ECPA so that the disclosure of the content of email and other electronic communications by an electronic communication or remote computing service provider to the Government is subject to one clear legal standard — a search warrant issued based on a showing of probable cause. The provision eliminates the confusing and outdated “180-day” rule that calls for different legal standards for the Government to obtain email content, depending upon the email’s age. The provision also requires that the Government notify the individual whose account was disclosed, and provide that individual with a copy of the search warrant and other details about the information obtained, within three days.
Section 203 also reaffirms current law to clarify that the Government may use an administrative or grand jury subpoena in order to obtain certain kinds of electronic communication records from a service provider, including customer name, address, session time records, length of service information, subscriber number and temporarily assigned network address, and means and source of payment information.
SECTION 204 – DELAYED NOTICE.
Section 204 amends section 2705 of ECPA to provide that the Government may seek a court order to delay notifying an individual of that fact that the Government has accessed the contents of the individual’s electronic communications for up to 90 days. This delay period may be extended for a period of up to an additional 90 days at a time by a court. Section 204 also establishes a 90-day time limit on the period that the Government could prevent a service provider from informing its customer about the disclosure of electronic communications information to the Government. This time period may be extended by a court for up to an additional 90 days at a time.
I apologize for my Who What Why Where criticizm. This time when I punched the blue CNET tab on the article the thing opened up for me. The information was there. We need to call Congress today. This sucks.
Sorry, here is a corrected – i hope – link,
http://news.firedoglake.com/2012/11/20/leahy-reverses-email-privacy-bill-to-give-federal-agencies-more-warrantless-surveillance-abilities/
Said it before I’ll say it again this guy is a neo-con in liberal clothing. His admin only cares about protecting secrecy and expanding govt control. Happy voting liberals. That’s sarcasm in case there was any confusion. I’m no conservative either, so spare me the con comments.
DDay gives a succinct description of Leahy’s involvement with HR2471., the modified spying is fun bill, and he is in it up to his ears. As Professor Turley notes above, he back-peddled as fast as he could when word leaked out (thus the Forbes article). As soon as the noise dies down a little , you can be sure he will be back to his mischief.
In fact, this is probably a good time to let Obama know, one final time, just what I think of him. He is so handsome, for one. And so smart! And he’s protecting us so well and foreigners just love us due to all his nifty model air-planes and in our own country locals just love all the out-door camping trips they and their children have had to go on…indefinitely, since they abruptly left their houses, and our senior citizens will soon be singing his praises to eternity in what-ever freezing back alley they are dumped in when they fail to come up with the Bill Gates league co-pay.
nick,
That is nonsense. Obama is nothing like either Mayor Daley.
oh I think this would happen to the majority of men elected to POTUS. The MIC, private prison industry and Multinationals are so rich now they can dictate policy.
And who gets appointed to high office in any administration.
These various corporate factions even have their talons in the Justice Department.
GaryT, Obama is a Chicago pol w/ a beautiful grin and great demeanor. Everytime you look @ him you should picture in your mind the late Mayor Daley. Then everything will make sense. Yes he was born in Hawaii, educated in Ca. and Ma., but he was weaned on Chicago politics. When you understand that undenialable fact, it all makes sense.
Gene,
Exactly … “But it can’t happen here.” … it already has and is.
“In other words it is, as ap continually reminds us, already bad out there. The Germany/Hitler/early ’30′s analogy is apropos.”
It has been bad since Bush and getting steadily worse. Civil liberties and human rights are under attack in the West at alarming levels and by alarming means. It’s funny when you try tell people that though. You can sit there and rattle off historical parallels and patterns and you get the full range of reactions; dismissal, disbelief, denial, concern, and what I find most often among friends the reaction of concern but that they’d simply rather not think about it consciously. Outrage comes up as does fear and loathing. Bad times.
But it can’t happen here.
Nobody wants there to be a monster under the bed and will go to great lengths to ignore the problem. The monster likes it that way. So much easier to grab your foot.
Ignoring the monster doesn’t make it go away.
It makes it easier to sneak up on you.
anonymously posted 1, November 20, 2012 at 1:52 pm
@CNET has it wrong. Sen.Leahy does NOT support an #ECPA exception to search warrant requirement 4 civil enforcement or agncies like FTC, SEC (see below)
https://twitter.com/SenatorLeahy
=========================================
Thanks for that.
I am pleasantly surprised at the antipathy expressed here by Prof. Turley.
I know he has been critical of Obama in the past, but I often felt it was a grudging criticism.
This blog makes it abundantly clear he is not taking anymore of Obama’s duplicitous crap.
That is the one thing that makes me despair, is exactly that, the hope and change that was promised by Obama, and then a virtual repeat of the grandiose promises of electorate empowerment, and then when he wins, it is a complete 180.
I love the fact of Obama’s win, basically proof that you can start from almost the lowest rung on the socioeconomic ladder, and make it to be president.
But this amazing fact is tossed upon the political corruption heap, as Obama has apparently been subsumed into that machine.