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For those of you who keep emails on a web-based server, have a look at this
piece of legislation -

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HR 2471: Proposed E-Mail Privacy Bill


Wednesday, December 12th, 2012

email privacy HR 2471: Proposed E Mail Privacy BillIn a few months, it may
be a little more difficult for law enforcement agents to get a hold of your
e-mail and social media messages. Last week, the Senate Judiciary Committee
approved
<http://www.huffingtonpost.com/2012/11/29/senate-internet-privacy-bill_n_221
2385.html>  a bill (HR 2471), sponsored by Sen. Patrick Leahy, which seeks
to update the 1986 Electronics Communications Privacy Act
<http://www.aaronkellylaw.com/internet-law/updates-to-the-electronic-communi
cations-privacy-act/> . The bill will require officials to obtain a warrant
if they want to read private e-mails or electronic messages.

What, exactly, is the Senate Judiciary Committee, you ask?  One of the
oldest government committees still in existence, the SJC was created in
1816. In addition to conducting Supreme Court nominee hearings, the judicial
board also deals with federal criminal law, human rights, immigration,
intellectual property, antitrust and online privacy.


How It Works Now


Issues surrounding e-privacy are largely governed by the Electronics
Communications Privacy Act, which was passed in 1986. The statutes codified
within the ECPA speak to a time when the World Wide Web was in its infancy
and e-mail was considered a transitory form of communication. As such, the
statute stipulated that law enforcement officials only needed to obtain a
warrant to read emails that are less than six-months-old.

Currently, law enforcement agents are able to obtain old e-mails with less
information than they would need to get a "probable cause" warrant.
Additionally, four states already have laws rendering warrantless access to
email unconstitutional; plus, other statutes exist which compel third
parties to hand over information to officials when lives are at stake or
children are at risk.

Lastly, government investigators and police officers can get "to" and "from"
data from e-mails - via judicial order - in order to build a probable cause
case to obtain a warrant. And believe it or not, officials can get e-mails
turned over, with less than a warrant, if the message falls into the vaguely
defined "electronic storage."

The Murky Legal History Of "Electronic Storage"  Since the Internet's
inception, lawmakers have been trying to lasso technology into legalese -
but they haven't had much luck wrangling a consensus on what constitutes
"electronic storage."The 9th Circuit Court of Appeals defined electronic
storage as simply "anything kept in an inbox." The Supreme Court of South
Carolina, however, ruled that "read emails are not in electronic storage and
can be read without a warrant." The Department of Justice thinks that
deleted, read and draft messages aren't in storage. To top it off, in 2010,
the 6th Circuit Court of Appeals ruled that warrantless e-mail reading
violates the Fourth Amendment.


Who Is In Support Of The New E-mail Privacy Bill? Who Is Against It?


Support for the bill is divided, but oddly enough, not across party lines.
While the sponsor of the bill is a Democrat, several co-sponsors are
Republicans. Moreover, the American Civil Liberties Union, Grover Norquist's
Americans for Tax Reform, Google, Microsoft and Twitter all support the
bill. However, the senate minority leader, Sen. Charles Grassley, has
expressed concern that there hasn't been sufficient debate on the topic;
additionally, associate deputy attorney general, James Baker, urged
officials last year not to pass the bill, suggesting it would hamper law
enforcement efforts.


What's The Next Step?


So, what's next for HR 2471. In all likelihood, we won't see any movement
until next year. The e-mail privacy law must first be cleared by the Senate,
at which point it will move on to the house.

Many legislators are also eager to add language that exempts law enforcement
officers from having to obtain a warrant in instances of rape and
kidnapping.

Experts estimate that cloud-computing will be a $240 billion a year industry
by 2020. In other words, U.S. firms must gain the confidence of users, or
they could lose out on all that juicy profit. Since the European Union has
already passed strict online privacy laws, expect U.S. officials to follow
suit, if not only to secure the nation's competitive cloud-computing edge
over the coming years.




<http://news.cnet.com/8301-13578_3-57552225-38/senate-bill-rewrite-lets-feds
-read-your-e-mail-without-warrants/> Senate bill rewrite lets feds read your
e-mail without warrants

A Senate proposal
<http://news.cnet.com/8301-31921_3-20071670-281/senator-renews-pledge-to-upd
ate-digital-privacy-law/> touted as protecting Americans' e-mail privacy has
been quietly rewritten, giving government agencies more surveillance power
than Text Box: Revised bill highlights
? Grants warrantless access to Americans' electronic correspondence to over
22 federal agencies. Only a subpoena is required, not a search warrant
signed by a judge based on probable cause.
? Permits state and local law enforcement to warrantlessly access Americans'
correspondence stored on systems not offered "to the public," including
university networks.
? Authorizes any law enforcement agency to access accounts without a warrant
-- or subsequent court review -- if they claim "emergency" situations exist.
? Says providers "shall notify" law enforcement in advance of any plans to
tell their customers that they've been the target of a warrant, order, or
subpoena.
? Delays notification of customers whose accounts have been accessed from 3
days to "10 business days." This notification can be postponed by up to 360
days.
they possess under current law, CNET has learned.

Patrick Leahy, the influential Democratic chairman of the Senate Judiciary
Committee, has dramatically reshaped his legislation in response to law
enforcement concerns, according to three individuals who have been
negotiating with Leahy's staff over the changes. A vote on his bill, which
now authorizes  <http://news.cnet.com/8301-13578_3-20002722-38.html>
warrantless access to Americans' e-mail, is
<http://www.judiciary.senate.gov/hearings/hearing.cfm?id=a4bac863917e3bf68f9
86f7431839d3c> 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
<http://news.cnet.com/8301-13578_3-57521680-38/feds-snoop-on-social-network-
accounts-without-warrants/> 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.

CNET obtained a draft of the proposed amendments from one of the people
involved in the negotiations with Leahy; it's embedded at the end of this
post. The document describes the changes as "Amendments intended to be
proposed by Mr. Leahy."

It's an abrupt departure from Leahy's
<http://www.leahy.senate.gov/press/leahy-introduces-benchmark-bill-to-update
-key-digital-privacy-law> earlier approach, which required police to obtain
a search warrant backed by probable cause before they could read the
contents of e-mail or other communications. The Vermont Democrat
<http://www.leahy.senate.gov/press/leahy-marks-25th-anniversary-of-ecpa-anno
unces-plan-to-mark-up-reform-bill> boasted last year that his bill "provides
enhanced privacy protections for American consumers by... requiring that the
government obtain a search warrant."

Leahy had
<http://news.cnet.com/8301-13578_3-57516501-38/senators-prepare-to-vote-on-n
etflix-and-e-mail-privacy/> planned a vote on an earlier version of his
bill, designed to update a pair of 1980s-vintage surveillance laws, in late
September. But after law enforcement groups including the National District
Attorneys' Association and the National Sheriffs' Association organizations
<http://news.cnet.com/8301-13578_3-57517033-38/senate-delays-netflix-e-mail-
privacy-fix-after-cops-protest/> objected to the legislation and asked him
to "reconsider acting" on it, Leahy pushed back the vote and reworked the
bill as a package of amendments to be offered next Thursday. The package (
<http://www.leahy.senate.gov/imo/media/doc/BillText-ElectronicCommunications
PrivacyActAmendmentsAct.pdf> PDF) is a substitute for
<http://thomas.loc.gov/cgi-bin/bdquery/z?d112:h.r.02471:> H.R. 2471, which
the House of Representatives already has approved.

One person participating in Capitol Hill meetings on this topic told CNET
that Justice Department officials have expressed their displeasure about
Leahy's original bill. The department is on record as opposing any such
requirement: James Baker, the associate deputy attorney general, has
<http://news.cnet.com/8301-31921_3-20051461-281.html> publicly warned that
requiring a warrant to obtain stored e-mail could have an "adverse impact"
on criminal investigations.

Christopher Calabrese, legislative counsel for the American Civil Liberties
Union, said requiring warrantless access to Americans' data "undercuts" the
purpose of Leahy's original proposal. "We believe a warrant is the
appropriate standard for any contents," he said.

An aide to the Senate Judiciary committee told CNET that because discussions
with interested parties are ongoing, it would be premature to comment on the
legislation.

Marc Rotenberg, head of the  <http://www.epic.org/> Electronic Privacy
Information Center, said that in light of the revelations about how former
CIA director David Petraeus' e-mail was
<http://news.cnet.com/8301-13578_3-57550072-38/petraeus-e-mail-affair-highli
ghts-u.s-privacy-law-loopholes/> perused by the FBI, "even the Department of
Justice should concede that there's a need for more judicial oversight," not
less.

 <http://www.holcherickson.com/about.htm> 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.

The list of agencies that would receive civil subpoena authority for the
contents of electronic communications also
<http://www.law.cornell.edu/uscode/text/44/3502> includes the Federal
Reserve, the Federal Trade Commission, the Federal Maritime Commission, the
Postal Regulatory Commission, the National Labor Relations Board, and the
Mine Enforcement Safety and Health Review Commission.

Leahy's modified bill retains some pro-privacy components, such as requiring
police to secure a warrant in many cases. But the dramatic shift, especially
the regulatory agency loophole and exemption for emergency account access,
likely means it will be near-impossible for tech companies to support in its
new form.

A bitter setback
This is a bitter setback for Internet companies and a
liberal-conservative-libertarian coalition, which had
<http://news.cnet.com/8301-31921_3-20123710-281/google-facebook-go-retro-in-
push-to-update-1986-privacy-law/> hoped to convince Congress to update the
1986 Electronic Communications Privacy Act to protect documents stored in
the cloud. Leahy glued those changes onto an
<http://news.cnet.com/8301-13578_3-57517033-38/senate-delays-netflix-e-mail-
privacy-fix-after-cops-protest/> unrelated privacy-related bill supported by
Netflix.

At the moment, Internet users enjoy more privacy rights if they store data
on their hard drives or under their mattresses, a legal hiccup that the
companies fear could slow the shift to cloud-based services unless the law
is changed to be more privacy-protective.

Members of the so-called Digital Due Process coalition
<http://www.digitaldueprocess.org/index.cfm?objectid=DF652CE0-2552-11DF-B455
000C296BA163> include Apple, Amazon.com, Americans for Tax Reform, AT&T, the
Center for Democracy and Technology, eBay, Google, Facebook, IBM, Intel,
Microsoft, TechFreedom, and Twitter. (CNET was the
<http://news.cnet.com/8301-13578_3-20001393-38.html> first to report on the
coalition's creation.)

Leahy, a former prosecutor, has a mixed record on privacy. He
<https://www.eff.org/deeplinks/2005/10/leahy-opposes-expansion-calea>
criticized the FBI's efforts to require Internet providers to build in
backdoors for law enforcement access, and
<http://epic.org/crypto/legislation/epriv_analysis.html> introduced a bill
in the 1990s protecting Americans' right to use whatever encryption products
they wanted.

But he also authored the 1994
<http://thomas.loc.gov/cgi-bin/bdquery/z?d103:SN02375:> Communications
Assistance for Law Enforcement Act, which is
<http://news.cnet.com/8301-13578_3-57544139-38/judge-prods-fbi-over-future-i
nternet-surveillance-plans/> now looming over Web companies, as well as the
reviled
<http://news.cnet.com/8301-31921_3-57358374-281/sen-leahy-bows-to-pressure-p
ledges-to-amend-protect-ip-bill/> Protect IP Act. An
<http://www.politechbot.com/p-02790.html> article in The New Republic
concluded Leahy's work on the Patriot Act "appears to have made the bill
less protective of civil liberties." Leahy had
<http://news.cnet.com/8301-31921_3-20103750-281/how-9-11-attacks-reshaped-u.
s-privacy-debate/> introduced significant portions of the Patriot Act under
the name  <http://thomas.loc.gov/cgi-bin/query/R?r106:FLD001:S58859>
Enhancement of Privacy and Public Safety in Cyberspace Act (
<http://cdt.org/security/000801cybercrime_bill.pdf> PDF) a year earlier.

One obvious option for the Digital Due Process coalition is the simplest: if
Leahy's committee proves to be an insurmountable roadblock in the Senate,
try the courts instead.

Judges already have been wrestling with how to apply the Fourth Amendment to
an always-on, always-connected society. Earlier this year, the U.S. Supreme
Court
<http://news.cnet.com/8301-31921_3-57364153-281/why-supreme-courts-gps-rulin
g-will-improve-your-privacy-rights/> ruled that police needed a search
warrant for GPS tracking of vehicles. Some courts have ruled that
warrantless tracking of Americans' cell phones,
<http://news.cnet.com/8301-13578_3-57524109-38/justice-dept-to-defend-warran
tless-cell-phone-tracking/> another coalition concern, is unconstitutional.

The FBI and other law enforcement agencies already must obtain warrants for
e-mail in Kentucky, Michigan, Ohio, and Tennessee, thanks to a
<http://news.cnet.com/8301-31921_3-20025650-281.html> ruling by the 6th
Circuit Court of Appeals in 2010.

Updated at 5:00 p.m. PT with the proposed amendments, 4:28 p.m. PT to
clarify sourcing and at 9:45 a.m. PT with additional details.



But later that very same day:



<http://news.cnet.com/8301-13578_3-57552687-38/leahy-scuttles-his-warrantles
s-e-mail-surveillance-bill/> Leahy scuttles his warrantless e-mail
surveillance bill


After public criticism of proposal that lets government agencies warrantless
access Americans' e-mail, Sen. Patrick Leahy says he will "not support" such
an idea at next week's vote.

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
<https://twitter.com/SenatorLeahy/status/270950052267180032> said today on
Twitter that he would "not support such an exception" for warrantless
access. The remarks came a few hours after a
<http://news.cnet.com/8301-13578_3-57552225-38/senate-bill-rewrite-lets-feds
-read-your-e-mail-without-warrants/?part=rss&subj=news> 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
<http://www.judiciary.senate.gov/hearings/hearing.cfm?id=a4bac863917e3bf68f9
86f7431839d3c> scheduled for next Thursday. The amendments were due to be
glued onto a substitute (
<http://www.leahy.senate.gov/imo/media/doc/BillText-ElectronicCommunications
PrivacyActAmendmentsAct.pdf> PDF) to
<http://thomas.loc.gov/cgi-bin/bdquery/z?d112:h.r.02471:> 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
<https://secure.freedomworks.org/site/Advocacy?cmd=display&page=UserAction&i
d=533> petition to Congress -- with more than 2,300 messages sent so far --
titled: "Tell Congress: Stay Out of My Email!"

A spokesman for the senator did not respond to questions today from CNET
asking for clarification of what Leahy would support next week. (We'll
update this article if we receive a response.)

A Democratic aide to the Judiciary committee did, however, tell CNET this
afternoon that Leahy does not support broad exceptions for warrantless
searches of e-mail content.

A note from Leahy's Twitter account
<https://twitter.com/SenatorLeahy/status/270952127826907137> added:
"Technology has created vacuum in privacy protection. Sen. Leahy believes
that needs to be fixed, and #ECPA needs privacy updates." That's a reference
to the 1986 Electronic Communications Privacy Act, which currently does not
require that police always obtain a warrant for the contents of e-mail and
other communications.

This revised position will come as a relief to privacy advocates and
business lobbyists, who have been scrambling since last week to figure out
how to respond to Leahy's revamped legislation. Some portions would have
imposed new restrictions on law enforcement, while others would lessen
existing ones, making the overall bill unpalatable to many groups.

The Center for Democracy and Technology, which is coordinating an industry
coalition pressing for surveillance reforms,
<https://twitter.com/CenDemTech/status/270940153822982146> said today that:
"We wouldn't support the rewrite described in CNET." (Members of the
coalition
<http://www.digitaldueprocess.org/index.cfm?objectid=DF652CE0-2552-11DF-B455
000C296BA163> include Apple, Amazon.com, Americans for Tax Reform, AT&T, the
Center for Democracy and Technology, eBay, Google, Facebook, IBM, Intel,
Microsoft, TechFreedom, and Twitter.)

Leahy's proposal would have allowed over 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 have given
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.

That was an abrupt departure from Leahy's earlier approach, which required
police to obtain a search warrant backed by probable cause before they could
read the contents of e-mail or other communications. He
<http://www.leahy.senate.gov/press/leahy-marks-25th-anniversary-of-ecpa-anno
unces-plan-to-mark-up-reform-bill> boasted last year that his bill "provides
enhanced privacy protections for American consumers by... requiring that the
government obtain a search warrant."

One person participating in Capitol Hill meetings on this topic told CNET
that Justice Department officials have expressed their displeasure about
Leahy's original bill. The department is on record as opposing any such
requirement: James Baker, the associate deputy attorney general, has
<http://news.cnet.com/8301-31921_3-20051461-281.html> publicly warned that
requiring a warrant to obtain stored e-mail could have an "adverse impact"
on criminal investigations.

Leahy, a former prosecutor, has a mixed record on privacy. He
<https://www.eff.org/deeplinks/2005/10/leahy-opposes-expansion-calea>
criticized the FBI's efforts to require Internet providers to build in
backdoors for law enforcement access, and
<http://epic.org/crypto/legislation/epriv_analysis.html> introduced a bill
in the 1990s protecting Americans' right to use whatever encryption products
they wanted.

But he also authored the 1994
<http://thomas.loc.gov/cgi-bin/bdquery/z?d103:SN02375:> Communications
Assistance for Law Enforcement Act, which is
<http://news.cnet.com/8301-13578_3-57544139-38/judge-prods-fbi-over-future-i
nternet-surveillance-plans/> still looming over Web companies, and the
reviled
<http://news.cnet.com/8301-31921_3-57358374-281/sen-leahy-bows-to-pressure-p
ledges-to-amend-protect-ip-bill/> Protect IP Act. An
<http://www.politechbot.com/p-02790.html> article in The New Republic
concluded Leahy's work on the Patriot Act "appears to have made the bill
less protective of civil liberties." Leahy had
<http://news.cnet.com/8301-31921_3-20103750-281/how-9-11-attacks-reshaped-u.
s-privacy-debate/> introduced significant portions of the Patriot Act under
the name  <http://thomas.loc.gov/cgi-bin/query/R?r106:FLD001:S58859>
Enhancement of Privacy and Public Safety in Cyberspace Act (
<http://cdt.org/security/000801cybercrime_bill.pdf> PDF) a year earlier.

Here's more reaction to Leahy's proposed changes:

.         Executives at DataFoundry, a provider of data center services in
Austin, Tex., said the proposed changes were an unacceptable breach of
Fourth Amendment protections against unreasonable search and seizure.

Ronald Yokubaitis, co-CEO of Data Foundry, said giving the government
near-unchecked authority to search consumer information stored in the cloud
would destroy confidence in cloud-based services and encourage more
businesses to move overseas, where protections are greater.

"If this language comes in, we are opposed to the bill," Yokubaitis said.
"It will kill cloud computing."

*	Several members of the coalition contacted by CNET today reiterated
support for the September version of Leahy's amendment, which included a
warrant provision. An Intel spokeswoman forwarded a letter in support of the
earlier version of the legislation, adding: "Our position of support for
the warrant requirement is unchanged."

Yet H.R 2471 continues to be pushed forward !



<https://www.google.com/search?num=50&hl=en&safe=off&tbo=d&site=webhp&source
=hp&q=H.R.2471&oq=H.R.2471&gs_l=hp.13..0.2288.2288.0.3425.1.1.0.0.0.0.71.71.
1.1.0.les%3B..0.0...1c.QvqUKsKK8s8> GOOGLE SEARCH:  HR 2471


Big Brother - Is Watching You: OHP Postcard

Our Government will use Google as a tool to potentially invade your privacy.
Research for yourself and if you believe the HR 2471 is an invasion of your
privacy, pass this message on and take a stand against this Legislation and
others like it.

Thank you for reading.

Best,

-John

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