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(crossposted from Green Mountain Daily)

W-w-where has we heard this before?

"Now, by the way, any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order. Nothing has changed, by the way."
Well, they're not talking about wiretap this time - but this comes closer than my comfort zone allows. By a fair piece.
CNET has learned that Patrick Leahy, the influential Democratic chairman of the Senate Judiciary committee, has dramatically reshaped his legislation in response to law enforcement concerns. A vote on his bill, which now authorizes warrantless access to Americans' e-mail, is scheduled for next week.
Leahy's rewritten bill would allow more than 22 agencies -- including the Securities and Exchange Commission and the Federal Communications Commission -- to access Americans' e-mail, Google Docs files, Facebook wall posts, and Twitter direct messages 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.
Maybe I'm just being difficult, but it would seem to me the LAST thing we would EVER want to do is in any way soften the Fourth Amendment "in response to law enforcement concerns."

Senator Leahy, October 20, 2011:

When I led the effort to write the ECPA 25 years ago, no one could have contemplated these and other emerging threats to our digital privacy.  But, today, this law is significantly outdated and out-paced by rapid changes in technology and the changing mission of our law enforcement agencies after September 11.   At a time in our history when American consumers and businesses face threats to privacy like no time before, we must renew the commitment to the privacy principles that gave birth to the ECPA a quarter century ago.  That is why I am working to update this law to reflect the realities of our time.
Emphasis mine. So much for that, I guess.
The delay comes two days after a phalanx of law enforcement organizations objected to the legislation, asking Leahy to "reconsider acting" on it "until a more comprehensive review of its impact on law enforcement investigations is conducted." The groups included the National District Attorneys' Association and the National Sheriffs' Association.
In an unusual procedural twist, the groups have no objections to Netflix's effort to upgrade the Reagan-era law. What worries them is an unrelated bill -- which Leahy glued onto the video privacy measure -- requiring police to obtain search warrants before accessing files stored in the cloud, including e-mail.
Troubled by all this?

Just remember the old adage:

If you're not doing anything wrong, you've got nothing to worry about.

Keep calm, and trust the government.

Originally posted to Nest of kestrel9000 on Tue Nov 20, 2012 at 08:50 AM PST.

Also republished by Police Accountability Group.

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Comment Preferences

    •  sounds like we all need to call leahy (22+ / 0-)

      and our other senators and tell them "oh hell no!"

      Please don't dominate the rap, Jack, if you got nothin' new to say - Grateful Dead

      by Cedwyn on Tue Nov 20, 2012 at 09:06:22 AM PST

      [ Parent ]

      •  Won't do any good (4+ / 0-)

        The Police State has arrived. All that's left is for a bad actor to get elected as POTUS and flip that switch! The USA will soon make the old East Germany look like a bastion of freedom.

        It's too late to avoid going down that slope when you've already arrived at the bottom. This now appears to be one truly bipartasin view of what our constitutional rights are really worth.

        Unless some brave House and Senate leaders step up and tackle this issue soon, I can only conclude that in this most recent election, we really did elect the lesser of two evils. In every race on the ballot.

        •  the bad actor has already been elected (3+ / 0-)

          and more than a few times. We are now entering a fourth successive term of presidential office where blatant police state policies will continue to progress. The executive branch (which by the way last time I checked was Obama's domain) is asking for this bill, just like they asked for all the other ones before it--Patriot Act, FISA 2.0, etc, and they are the onces waging war on whistle blowers, in charge of operating Guantanamo, rendering prisoners for torture, and claiming the power to carry out extra judicial assassinations of American citizens. We do not need the threat of a GOP president to envision what could happen under their watch, we already did with Bush when he set this horror in motion and Obama has only been to happy to put it on steroids.

          Then there is the Congress that just goes along for the ride and simply asks the executive branch if they want anything else.

          "People place their hand on the Bible and swear to uphold the Constitution. They don't put their hand on the Constitution and swear to uphold the Bible."

          by michael1104 on Tue Nov 20, 2012 at 10:44:50 AM PST

          [ Parent ]

          •  I wouldn't call Obama a bad actor (0+ / 0-)

            At best, he's neutral on the good vs bad scale (e.g. good vs evil, which is what we're really talking about) when it comes to protecting our rights. Every president takes an oath to protect and preserve the Constitution. Looking back and judging administrations by the records of their Justice Departments, my own opinion is that Jimmy Carter was the last president who did not overtly violate that oath.

            The day is coming when domestic law enforcement has a surveillance drone shot down by someone looking to take preservation of the 4th Amendment into their own hands. That someone will be demonized as a terrorist and be deprived of his or her liberty pretty quickly. And the people will yawn and say, "so what?"

            It has always amazed me that those who revere the 2nd Amendment are so short-sighted that they fail to see that preservation of the other Amendments is just as important as ol' No. 2.

      •  or remember the first adage of IT: (5+ / 0-)
        Recommended by:
        Cedwyn, CwV, Avila, Lujane, OMwordTHRUdaFOG

        Privacy stops when you hit "enter".

        LBJ, Lady Bird, Anne Richards, Barbara Jordan, Sully Sullenberger, Ike, Drew Brees, Molly Ivins --Texas is no Bush league! -7.50,-5.59

        by BlackSheep1 on Tue Nov 20, 2012 at 10:18:16 AM PST

        [ Parent ]

        •  absolutely true (6+ / 0-)

          and anybody who believes true privacy/anonymity exists online is naive as all get out.

          but that's not the same thing as this.

          Please don't dominate the rap, Jack, if you got nothin' new to say - Grateful Dead

          by Cedwyn on Tue Nov 20, 2012 at 10:20:39 AM PST

          [ Parent ]

        •  Exactly right (1+ / 0-)
          Recommended by:
          No one gets out alive

          The only way to protect your privacy online is to not do anything that you want to keep private on line. The only secure system is one that has no connection to any other system.
          I grew up in a family that held security clearances from the forties to the eighties. My grandfather told me "never say anything on the phone that you wouldn't say directly in front of a cop". It doesn't matter what the law is, "Law Enforcement" or "National Security" is going to have access to your communications.
          While I would fight this further incursion, simply because it embolden's Government to go deeper, it's the private sector that worries me.
          They buy and sell your information, hold it in insecure networks, "lose" it, get hacked, et cetera. And that information, like your medical and financial records are more likely to be used to your disadvantage than some conversation you had on twitter, unless it was with Bin Laden.
          Any data that you store outside of your own drive, might as well be published. eCommerce is a nightmare. Facebook and their ilk are just astounding to me because people willingly incriminate themselves, publicly and then wonder why they face retaliation!
          And this is why I seriously distrust the idea of putting elections on line.
          Or the Grid. Talk about opening a vulnerability to trrrrrsts and pranksters? Come on! Put a detailed control of the entire country's electrical distribution system in the clouds? What FUN! Lets shut off one city after another all night, just little short shots, a couple minutes each maybe? The whole country blinking like christmas lights! Serious hilarity!
          So yeah, by all means lean on Leahy, for all the good it'll do. Until he does something about the private sector abuse of Privacy, it really means very little.

          If I ran this circus, things would be DIFFERENT!

          by CwV on Tue Nov 20, 2012 at 10:51:47 AM PST

          [ Parent ]

    •  Petraeus (4+ / 0-)

      What bothered me most about the whole Petraeus thing wasn't that he had an affair that potentially could have had national security violations.

      It was that the FBI happily started looking at private emails based only on something an agent's friend told them.  

      I would hope in our supposed free, Constitutional society, it would take more than one accusation for my privacy to be violated.

      Also, I can kill you with my brain.

      by Puffin on Tue Nov 20, 2012 at 11:07:40 AM PST

      [ Parent ]

  •  That old 4th Amendment is just too quaint. (15+ / 0-)

    In the age of TIA, privacy is dead. All this to-do about warrants and such is just a tempest in a teapot (IMO). Unrestricted govt. spying on whomever they want (the head of the CIA?) is a done deal, it seems to me.

  •  what idiocy (9+ / 0-)

    exactly who interprets these recent election results as a call to make it easier for not just law enforcement but employers & co-workers to invade our privacy? how did anyone get this as the message?

    Shout golden shouts!

    by itsbenj on Tue Nov 20, 2012 at 09:53:59 AM PST

  •  Not much comfort in this: (9+ / 0-)
    Just remember the old adage:

    If you're not doing anything wrong, you've got nothing to worry about.

       Because just who is it that determines what it means to be doing something wrong?

    "We the People of the United States...." -U.S. Constitution

    by elwior on Tue Nov 20, 2012 at 10:02:55 AM PST

  •  Problem is the Cloud, not Leahy. And related lega (6+ / 0-)

    l concept of what is 'private'.  

    The 4th A specfically seaks to 'letters', which clearly required a warrant as long as the US Post Office was thir only shipper.  But, entry UPS and the like private carriers and suddenly private actors where opening the mail and telling cops.  That is not government action, so not covered by the 4th.

    But, what if the cops asked UPS to look?  Well, combining cryto-fascist disdain for other people's rights, the Thug's love of all things Gov'mint... when going after 'those people', and the never ending quest to insulate private enterprise from any possibility of suit (even when - esepcialy when- totally justified), courts developed the notion that if you gave your private stuff to non-government 3rd party's who might open it... it ceased being private.  If its no longer private, its not a search for cops to ask and the 4th does not apply.  

    And what's worse, bc of lgal fictions, by giving it a 3rd party you obviously intended to give up your privacy with respect to the items and so have only yourself to blame.

    The Cloud is one big non-government 3rd party who might open your 'letters', so transmission thru or storage in pretty much means you wanted to have your 4th A rights trashed.

    Capice?, as Dons Scalia and Alito would say.

    The only limit is, of course, contract right - yeah, capitalism!
    Meaning, you have privacy here only if your 3rd party carrier contract prohibits them reporting to or co-operating with law enforcement with respect to your 'letters' (or more specifically their contents).  

    So 1% you say?  But of course...

    Where EPCA enters is that non-of this non-direct peer to peer stuff existed then, so while it statutorily mandated a warrant for some 3rd party controlled stuff (tho the 4th did not require it) it of couse did not do so for The Cloud.  

    Cops have used that unintended loophole to violate folks privacy for over a decade.  You seriously don't expect them to stop now... do you?

    And so it goes...

    •  problem is more SCA (1+ / 0-)
      Recommended by:
      Paper Cup

      see United States v. Warshak, 2010.

      under the provisions of the Stored Communications Act, federal law allows the government to just bypass any quaint, pre-911 "reasonable expectation of privacy," such as a person's email (postal mail, telephone calls).  however, Sixth Circuit Court of Appeals ruled No, You May Not to that two years ago:

      Given the fundamental similarities between email and traditional forms of communication [like postal mail and telephone calls], it would defy common sense to afford emails lesser Fourth Amendment protection....

      [T]he police may not storm the post office and intercept a letter, and they are likewise forbidden from using the phone system to make a clandestine recording of a telephone call--unless they get a warrant, that is. It only stands to reason that, if government agents compel an ISP to surrender the contents of a subscriber's emails, those agents have thereby conducted a Fourth Amendment search, which necessitates compliance with the warrant requirement....

      for reference, SCA

      School district accused of spying on kids via laptop webcams.  here's a redacted PDF geek version, white paper of Lower Merion School District but the Sixth Circuit's ruling held:

      found that email users have a Fourth Amendment-protected reasonable expectation of privacy in the contents of their email accounts and that "to the extent that the SCA purports to permit the government to obtain such emails warrantlessly, the SCA is unconstitutional.
      Senator Leahy? no, sir.  no way.
    •  There are ALEC boilerplate laws ready to pass (0+ / 0-)

      One has to do with forcing 3rd parties, public Internet providers especially, to grant unlimited warrantless access to everything in order to be registered to do business in a state.

      The bullshit is something about "guaranteed privacy protection". Typical ALEC nonsense.

      The "model legislation" is clearly unconstitutional, but that's their strategy. After the batshit crazy bagger legislatures shove this shit into the statutes, it becomes possible to violate our rights without penalty or risk. Police, for example, are not liable for enforcing laws that are overturned later. In most cases there's no harm (in the legal sense), so there's no penalty or awards for damages.

      Voter ID laws aqre an example. They were enacted right before the elections with the idea that it wouldn't be possible to overturn them in time. In most cases, they lost this bet.

      The warrantless wiretap and email spying is different. There's no way to know if one's rights have been violated. There is next to no chance that the law will be challenged in court if the activity is opaque. It would be difficult to show harm or damages, so the worst case result might be a stern lecture, a strongly worded letter, no penalty, and a partial or complete overtuning of the statute. That might leave part of the law in force with a new precedent established.

      Now, we've got a part of a bad law that will be difficult if not impossible to overturn. The ALEC secret laws account for this. Some of their evil plot stays in place.

      One irony is that these idiot wingers tend to eliminate funding to actually perform this stuff. No personnel, no training, no equipment. But that doesn't stop them. They can apply for homeland security grants for this shit. That money is now hidden in the secret federal military budget. Again, nobody knows until it's already happened.

      That's how our little town of 20k 75% Democratic voting people got a "free" Bearcat nerve gas resistant, bulletproof, assault vehicle complete with 50 caliber machine gun mounting hardware that suddenly showed up at the police parking lot. Nobody except the newly promoted police chief knew anything about this. The citizens were pissed and fought this for a few weeks, but the fact is that it was already a done deal and the feds won't take it back.

      In fairness, the beast will come in handy whenever the vulnerable areas of town get flooded because of heavy rain. The frame is high enough to navigate the flooded streets. And we know that flooding will happen more often.

      ALEC is a BIG problem.

      "Never wrestle with a pig: you get dirty and the pig enjoys it"

      by GrumpyOldGeek on Tue Nov 20, 2012 at 01:33:42 PM PST

      [ Parent ]

  •  If they outlaw privacy only outlaws will have it. (2+ / 0-)
    Recommended by:
    Lujane, gunnarthor

    I'm waiting for the bill that says any attempt to anonymize yourself on the internet is a felony.  What a joke we've become when it comes to civil liberties...

    "If you can find money to kill people, you can find money to help people." -Tony Benn (-6.38,-6.36)

    by The Rational Hatter on Tue Nov 20, 2012 at 10:22:59 AM PST

    •  It has been proposed (2+ / 0-)

      and died quickly, but IIRC it was part of a house bill this session.

      If I ran this circus, things would be DIFFERENT!

      by CwV on Tue Nov 20, 2012 at 10:56:19 AM PST

      [ Parent ]

      •  Good God that was me being bitterly sarcastic. (3+ / 0-)
        Recommended by:
        CwV, GrumpyOldGeek, Garrett

        I suppose I should not be surprised anymore.  I suppose the silver lining is that the people who write the law are not as smart as the people who use the technology.  


        "If you can find money to kill people, you can find money to help people." -Tony Benn (-6.38,-6.36)

        by The Rational Hatter on Tue Nov 20, 2012 at 12:51:19 PM PST

        [ Parent ]

        •  It's hard for a cynic to keep up, huh? (1+ / 0-)
          Recommended by:
          The Rational Hatter

          And YAY for Tony Benn.

          If I ran this circus, things would be DIFFERENT!

          by CwV on Tue Nov 20, 2012 at 01:03:41 PM PST

          [ Parent ]

        •  My real name is Grumpy Old Geek (0+ / 0-)

          Real bills proposed in recent NH legislative sessions:

          A bill to make it legal to kill police officers.

          A bill to eliminate all speed limits.

          A bill to eliminate penaties for beating your spouse or children.

          A bill to eliminate meals for prisoners.

          A bill requiring all new bills to cite compliance to a section of the Magna Carta.

          A bill to require proof of insanity using eugenics "technology" to receive mental health benefits.

          A bill to eliminate mental health benefits entirely. The reasoning was that those "freeloaders" would cure themselves if they weren't paid for being mentally ill. Those words were from the Speaker of the House! This bill actually passed after it was amended to elininate a substantial portion of the funding. And the crime rate and suicide rate went up.

          To be fair, anyone can run for state rep if they're at least 18, live in the district for (i think) 6 months, and pays the $3 filing fee. Yes, that's three dollars. NH has a 400-member house. That's about 3000 people per rep. So we always get a genuine nutcase or two.

          I can hardly wait for this term's entertainment.

          "Never wrestle with a pig: you get dirty and the pig enjoys it"

          by GrumpyOldGeek on Tue Nov 20, 2012 at 01:50:47 PM PST

          [ Parent ]

  •  This is the signature attached to every email... (6+ / 0-)

    ...that I send.

    NOTICE: Due to Presidential Executive Orders and a spineless Democratic Party controlled congress, the National Security Agency may have read this email without warning, warrant, or notice. They may do this without any judicial or legislative oversight.  The fourth amendment to the Bill of Rights was deprecated on 7/9/08.
    Don't know what my signature is about?

    Google the date (better yet, use  Understand what happened when this bill was passed.  And take a very close look at who voted in favor of the bill.

    "Mitt who? That's an odd name. Like an oven mitt, you mean? Oh, yeah, I've got one of those. Used it at the Atlas Society BBQ last summer when I was flipping ribs."

    by Richard Cranium on Tue Nov 20, 2012 at 10:26:50 AM PST

  •  i just assume (4+ / 0-)
    Recommended by:
    JayBat, kestrel9000, Cedwyn, Garrett

    that any and all electronic communications are or could be monitored. don't forget that merkley and bennet and wyden warned that things are much worse than we know. merkley has been trying to do something about it.

    The cold passion for truth hunts in no pack. -Robinson Jeffers

    by Laurence Lewis on Tue Nov 20, 2012 at 10:31:45 AM PST

  •  Fourth Amendment? (1+ / 0-)
    Recommended by:

    It's too late to save it. That one went under the bus long ago, at the behest of the Drug Warriors.

    "A lie is not the other side of a story; it's just a lie."

    by happy camper on Tue Nov 20, 2012 at 11:03:14 AM PST

  •  If this is true (2+ / 0-)
    Recommended by:
    buddabelly, GrumpyOldGeek
    If you're not doing anything wrong, you've got nothing to worry about.
    then we wouldn't hang curtains on our windows, use passwords on our computer programs and emails, install locks on our doors, or have a PIN for our debit/credit cards.

    The whole problem with that mindset is that data aggregators don't interpret the data or place it in context.  Buying a book on meth labs doesn't mean you want to build one (you could be doing a research paper, arguing with your sister-in-law the cop, writing a novel, curious about the terms, suspicious of a house down the street...), but would a data aggregator know that?  Especially if the next week you got a cold and bought some medication for it.

    The rules on what data is collected could change, and once data collection is allowed, you no longer have control over what data is collected or how that data is used - the next political party in could change it all up and they will never make it less invasive.

    Even if you consider yourself as innocent as a newborn, data can be twisted to say otherwise. Say you stop and park near a corner known for prostitution for a few hours very week - how are data collectors to know you are helping an elderly friend who lives nearby, or maybe you're attempting to lure them into a safer lifestyle, or any of a number of other reasons for being there so often - but would Social Services care? They'd "red-flag" you and start an investigation that could end up costing you your job, and maybe your spouse and kids.

    More importantly, sometimes laws are misguided, poorly worded, or flat out wrong and instead of blindly attempting to adhere to them, they need to be broken, repealed, or otherwise removed.  Many of our civil rights laws came about from breaking the old ones.  The Blue laws, the Jim Crow laws, abortion, women's rights, gay rights....

    That whole "nothing to hide" stuff is a bunch of malarky.

    All knowledge is worth having. Check out OctopodiCon to support steampunk learning and fun. Also, on DKos, check out the Itzl Alert Network.

    by Noddy on Tue Nov 20, 2012 at 11:51:05 AM PST

  •  It is past time for everyone to use encryption (2+ / 0-)
    Recommended by:
    Noddy, twigg

    on every single email whether totally innocuous or something you really do want private.

    If nothing else it will add a layer of hassles to the now ridiculously easy tracking and storing of every bit of info we deal with.....

    Someone like myself who is a learnaholic might just look up anything you can think of on a whim....which is why I rotate between scroogle scraper, duck duck go and google with ask and others thrown in on least make it a little difficult on them...

    Vaya con Dios Don Alejo
    I want to die a slave to principles. Not to men.
    Emiliano Zapata

    by buddabelly on Tue Nov 20, 2012 at 12:47:46 PM PST

    •  And wait for the government agencies (1+ / 0-)
      Recommended by:

      to deem that encryption is "reasonable grounds" for suspicion ... if not actual "probable cause".

      I hope that the quality of debate will improve,
      but I fear we will remain Democrats.

      by twigg on Tue Nov 20, 2012 at 01:50:11 PM PST

      [ Parent ]

  •  No warrant required for mass (0+ / 0-)

    round ups

    with only the faintest physical description and unsure which vehicle the device was in, the police trained their weapons on all 20 cars at the intersection and ordered people to show their hands. For nearly two hours, the police ordered every driver and passenger to step out of their cars, even handcuffing some of them, before discovering the missing money and two loaded firearms in Mr. Paetsch’s S.U.V.

    The case, now winding its way through the federal court system, is being watched by Fourth Amendment lawyers and law enforcement experts. While advanced technology now gives the police the power to shadow a suspect moments after a crime is committed, there are still legal questions over how wide a net the authorities can cast while in pursuit.

    At issue is not Mr. Paetsch’s involvement in the robbery. Rather, his lawyer, Matthew Belcher, a federal public defender, has argued that evidence seized from Mr. Paetsch’s vehicle should be thrown out on the grounds that the roadblock was unconstitutional.

    Our president has his failings, but compared to Mitt Romney he is a paradigm of considered and compassionate thought.

    by OMwordTHRUdaFOG on Tue Nov 20, 2012 at 02:17:49 PM PST

  •  Good news. (0+ / 0-)
    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!"

    Leahy scuttles his warrantless e-mail surveillance bill, CNET

  •  why do they need a law to allow this? (0+ / 0-)

    they got into Petraeus's and Broadwell's email without a warrant.

    I am confused.

    I thought the recent downfall of Petraeus would make this go in the opposite direction, not make it easier.

    "I'm sculpting now. Landscapes mostly." ~ Yogi Bear

    by eXtina on Tue Nov 20, 2012 at 06:45:30 PM PST

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