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CNET has a scoop on developments over at the Senate Judiciary Comittee where Patrick Leahy has re-written an earlier draft of a bill designed to protect Amercan's e-mail privacy.

A Senate proposal touted as protecting Americans' e-mail privacy has been quietly rewritten, giving government agencies more surveillance power than they possess under current law.

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.

It all sounds scary, but they have this all wrong.

Leahy's re-written bill, which you can read here,  prohibits law enforcement agencies from accessing GPS information without a warrant, and generally requires law enforcement to obtain a warrant to compel service providers to disclose information unless the information is relevant to an ongoing telemarketer fraud investigation (a relatively narrow loophole).  this is great because currently, these agencies obtain this information based on an adminstrative subpoena that is not subject to judicial review.

The controversial portion of the rewritten bill is the portion which grants all Federal agencies (defined here) the power to issue an administrative subpoena for electronic information, GPS information and even remote computing service.

CNET quotes an array of folks raising privacy red flags, as well as a corporate lobbyist who seems terrified:

Markham Erickson, a lawyer in Washington, D.C. who has followed the topic closely and said he was speaking for himself and not his corporate clients, expressed concerns about the alphabet soup of federal agencies that would be granted more power:

    ❝ There is no good legal reason why federal regulatory agencies such as the NLRB, OSHA, SEC or FTC need to access customer information service providers with a mere subpoena. If those agencies feel they do not have the tools to do their jobs adequately, they should work with the appropriate authorizing committees to explore solutions. The Senate Judiciary committee is really not in a position to adequately make those determinations. ❞

What we have here, is a situation where legitimate concerns over individual privacy are being conflated with the legitimate needs of regulatory agencies to be able to investigate regulated entities.  The CNET article seems to adopt the frame of the corporate lobbyist and confused privacy groups to suggest that this bill somehow threatens the privacy rights of everyone, when in effect, the main losers of this bill would be regulated corporations.

The fact is all major federal law enforcement agencies have administrative subpoena power. None of those agencies are contemplated by the controversial provision in the Leahy bill.  In fact, elsewhere in the Leahy bill it is made explicitly clear that these law enforcement agencies are required to get a warrant in all cases not involving telemarketer fraud. Thus, from that perspective the bill achieves an important civil liberties victory.

The biggest aspect of the proposed bill is that it would empower many new agencies, such as the NLRB, the Fed, the FTC, the FCC and 18 other largely civil regulatory agencies to issue administrative subpoenas which could be used to gather evidence prior to the initiation of a lawsuit.  

This helps the regulatory process in two ways:

1.  It will help agencies build more cases, and ultimately try more cases.  Right now you would have to sue and get past a motion to dismiss in order to compel discovery of that information.  If the case hinges on that information it means that the case would be dismissed before you could ever get access to that critical information.

2.  It will promote efficiency.  Agencies won't have to file suits to collect damning evidence.  Instead, they can simply collect the evidence, confront the opposing party with the evidence and settle.

To be sure, there is potential for abuse here.  Those are assuaged somewhat by Supreme Court precedent which requires that these administrative subpoenas be issued only if “the inquiry is within the authority of the agency, the demand is not too indefinite and the information sought is reasonably relevant.”  Not to many typical people are reasonably within the authority of the agency and have information reasonably relevant to an agency investigation.  You know who does have that kind of information? Powerful corporations and the people who run them.

With that caveat, I believe that there should be provisions which would bar agencies from sharing this information collected for civil purposes in a subsequent criminal action.  Even the leaders of corporations should be protected from 4th amendment abuses in criminal prosecutions.  But as a Senate Judiciary Committee draft, I'd say it's a damn good starting point.

Thus, the major losers will not be civil liberties advocates--they will be corporate crooks and those evading effective regulation.  As a consumer attorney I welcome the proposition of a CFPB armed with the ability to subpoena e-mail records without filing a lawsuit.  Or an NLRB that can do the same to expose corrupt union busting efforts.  

It's unfortunate that CNET failed to ask critical questions about who would be effected and why.  I just hope that this anti-Leahy bill meme doesn't spread any further than the usual ignorant suspects.  

UPDATE: Leahy scuttles his amendment allowing adminstrative subpoenas for 22 regulatory agencies

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