A No-Brainer: Bad for Privacy and Liberty

CNET journalist Declan McCullagh has lit up the Internets today with his reporting on a revamped Senate online privacy bill that would give an alphabet soup of federal agencies unprecedented access to email and other online communications.

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.

This would be an astounding expansion of government authority to snoop. And it comes at a time when the public is getting wind through the Petraeus scandal of just how easy it already is to access our private communications.

Assuming McCullagh’s reading of the draft he obtained is remotely plausible, Senate Judiciary Committee Chairman Patrick Leahy (D-VT) should reconsider his current course–if he wants to maintain the mantle of a privacy leader, at least.

The Washington, D.C., meta-story is almost as interesting. Who is where on the bill? And when? The ACLU’s Christopher Calabrese told McCullagh last night, “We believe a warrant is the appropriate standard for any contents.” Freedom Works came out of the gate this morning with a petition asking for oppositions to Senator Leahy’s revised bill.

The Center for Democracy did not have a comment when McCullagh asked, though spokesman Brock Meeks suggests via Twitter today that McCullagh didn’t try hard enough to reach him. The reason that’s important? CDT has a history of equivocation and compromise in the face of privacy-invasive legislation and policies. At this point, the group has said via Twitter that they “wouldn’t support the rewrite described in CNET.” That’s good news, and it’s consistent with people’s expectations for CDT both on the outside and within.

There will undoubtedly be more to this story. Emails should not only be statutorily protected, but Fourth Amendment protected, based on the framework for communications privacy I laid out for the Supreme Court in Cato’s Florida v. Jardines brief.