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The U.S. Senate is moving toward greater electronic privacy protection in an effort to update a decades-old law and draw clearer boundaries for the federal government in the ongoing tension between national security and personal freedom.
Sen. Mike Lee, R-Utah, is teaming up with Democratic Senate Judiciary Committee Chairman Patrick Leahy to sponsor amendments to the 1986 Electronic Communications Privacy Act, or ECPA. Lee said the need for updated laws is obvious given the technological explosion in recent years. He said without the changes Americans will be surprised and upset with what the government can do with their private messages.
"The law at the time was written so that emails would basically lose their Fourth Amendment protections once they got to be older than 180 days. Once they got to be about six months old, the government could gain access to their contents without a court warrant," Lee said. "This legislation, in essence, moves to get rid of the 180-day distinction and would require a warrant if the government wants to gain access to the content of emails older than 180 days."
The Sept. 11 attacks thrust the liberty versus security debate front and center in the U.S., and the recent Boston Marathon terrorist attack has reignited the controversy to some extent. Lee said there doesn't need to be a lot of hand wringing about this because the Constitution protects our rights and the government has ways to obtain otherwise private materials if national security is at stake.
"Most lawmakers approach this with an understanding that people expect their emails to remain private. They understand there are circumstances when government law enforcement agents might need to gain access to our private communications but they also understand, as in other areas, this ought to require a court order," Lee said. "Sure, it makes the government's task a little more difficult, but we have procedures in place to expedite that or even allow it to be bypassed altogether through existing case law whenever life and limb is at great risk and there's no other way to deal with it. If those conditions can't be met, then government agents just need to go and get a court order.
"The Constitution was not designed to make things more efficient for the government. It was put in place to protect the rights of individual citizens, and that's what this bill does. That's why I expect it to pass overwhelmingly, if not unanimously, through the Senate," Lee said.
The Senate legislation follows contentious debate over a House bill known as the Cyber Intelligence Sharing and Protection Act, or CISPA. Supporters say it constitutes a critical upgrade in providing the federal government tools to ward off cyber attacks and protect computer networks. Critics allege that is is a huge erosion of electronic privacy. CISPA passed the House easily but is now stalled and likely dead in the Senate.
Lee said a final bill never made it to the floor, so he never took a formal position on the issue.
"CISPA has been a moving target, and I've had some privacy-related concerns with it," he said. "It really would depend on the form in which it ultimately got to us. It's premature to say what that might look like if and when it ever comes to us."
House Republicans were the driving force behind CISPA. Lee, as a sponsor of legislation expanding privacy rights, said he's not surprised at how the votes lined up.
"These things are difficult to predict in all circumstances, and these are very difficult areas to navigate because you have unusual cross-currents that develop within the two parties," he said. "Sometimes you have unlikely allies on the right and on the left."