Privacy Matters? US Senate Set to Give Online Community Post-Thanksgiving Heartburn

By Peter Bernstein November 21, 2012

During this holiday season, the topic of online privacy, or should I say the lack of it, is a gift that unfortunately keeps on giving. Just when it seemed we would get a respite from what we should or should not do to protect ourselves from public and private eyes watching us, here we go again. Yes, it appeared that the Patraeus affair stupidity of using Gmail for intimate correspondence was fading from the top of the news cycle and hence privacy matters might wait at least until a new session of Congress. However, no such luck. News from Washington, D.C., courtesy of the good people at CNET, is that U.S. Senator Patrick Leahy (D-Vermont) put some bad stuffing in our Thanksgiving feasts.  In Internet terms, OMG!

For those of you who are not U.S. citizens, or who are and may not follow closely all of the machinations about who should and under what conditions have access to our personal data, Senator Leahy is the Chairman of the Senate Judiciary Committee, meaning he is a big shot, but he also was a co-author of the infamous and seemingly dead Protect IP Act, aka PIPA. Remember, this one, it caused such a fury of outrage in the online community that it was shelved several months ago. 

What evil lucks?

It might appear innocuous enough. The Senate has been looking at House Resolution (H.R.) 2471 described as a bill, “To amend section 2710 of title 18, United States Code, to clarify that a video tape service provider may obtain a consumer's informed, written consent on an ongoing basis and that consent may be obtained through the Internet.” The goal was to allow movie rental companies like NetFlix to provide the movie viewing habits of their users to social media companies like Facebook, Google and Twitter.

But alas, this being the holiday season, “Christmas Tree” bills tend to be the order of the day. And, in the form of a substitute with amendments Senator Leahy, thanks according to the CNET report of some lobbying by interested parties, has done a remarkable about face— turning what was supposed to be a bill protecting e-mail privacy into one granting government surveillance of online services without a warrant. In many cases, searches would still require a warrant. However, if law enforcement (which is broadly defined as to whom that might be) claims a situation is an emergency, the agency could gain access without a warrant or a subsequent court review.

Two things have civil libertarians justifiably up in arms.

First, the new language says that 22 federal agencies would have access to electronic communications under “emergency” circumstances. The list includes agencies such as the Securities and Exchange Commission and the Federal Communications Commission. Making things more dicey is that online service providers would have to notify law enforcement agencies in advance if the online service provider intended to inform users about the account access. Notification would also be delayed from 3 days to 10 business days, and could be postponed up to nearly a year. This gives a new twist to “don’t ask, don’t tell.”

The CNET account says Leahy changed course on the bill under pressure from the U.S. Justice Department. Turns out the feds were not comfortable with being able to pursue bad actors if they needed to obtain search warrants.

The second problematic issue with this effort surrounds timing, as in “Why NOW?” The newly constituted bill is scheduled for a Senate vote next week. For a Congress that has the “fiscal cliff” hanging fire at the moment, and is about to have a total refresh in January as a result of the election, bringing up what is sure to be a very controversial piece of legislation during a lame duck session, by a group that has been notorious for doing nothing including not passing a budget for three years, is hard to fathom.

One things politicians in Washington are really good at is counting votes. Clearly, there is something about the current make up of the Senate that Senator Leahy likes, or something about the incoming crowd he does not. 

Read it an weep

CNET was kind enough in their extensive article on the subject to provide the new language which is embedded below. It makes for interesting reading.

Proposed amendments to EPCA

One can only surmise that Senator Leahy, mindful of the uproar that killed PIPA, must feel that tacking this onto a seemingly benign bill and attempting to get it passed while the press is pre-occupied was his best path for passage. Given the speed at which this story is going viral, he probably has under-estimated the power of the medium he wishes to regulate.

Finally, and again according to the CNET piece, it should be noted that government requests for access to users online behavior is on the rise. The online community, particularly the members of the Digital Due Process coalition (made up of Apple, Amazon.com, Americans for Tax Reform, AT&T, the Center for Democracy and Technology, eBay, Google, Facebook, IBM, Intel, Microsoft, TechFreedom, and Twitter), is not going to take kindly to this. Big brother acting like big brother, and having the online community aid and abet them, is not a role they wish to take. Their businesses after all are built on trust, and they are having enough problems convincing users that in an era of “big data,” that they can be trusted when we go online and only wish to expose information to parties with whom we get value in exchange. 

Senator Leahy, at the behest of the government seems to want to lead us in the opposite direction, and it is a direction where even the intended consequences can have significant impact. We will be keeping a close eye on this one.




Edited by Stefanie Mosca
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