Email privacy update at ‘impasse’ in Senate

A closely watched email privacy bill is struggling in the Senate and could be at risk of stalling, despite unanimous passage in the House.

Negotiations over the Electronic Communications Privacy Act Amendments Act are at an “impasse,” Senate Judiciary Chairman Chuck Grassley (R-Iowa) said on Thursday, during a planned markup of the bill.

{mosads}As a result, the bill’s authors — Sens. Patrick Leahy (D-Vt.) and Mike Lee (R-Utah) — asked for the measure to be pulled from the committee’s agenda, dealing a major blow to privacy advocates who hoped to move the bill forward this year. The move delays action on the email privacy bill for the foreseeable future. 

The measure would update a 1986 law that allows government officials to obtain emails without a warrant as long as the messages are older than 180 days.

Similar legislation sailed through the House earlier this year, giving hope to privacy advocates who have for years been pushing Capitol Hill on the issue. Given the stalemate that tends to envelop Congress during major campaigns, the email privacy bill was considered to be among the best hopes for privacy advocates all year.

But a flurry of new amendments has derailed the push and could prove to be a death knell for the legislation.

In particular, supporters of the underlying bill have fought against an amendment from Sen. John Cornyn (R-Texas) that would expand the government’s ability to use a tool known as National Security Letters to seize information from companies without the use of a warrant. The measure would allow the FBI to gather internet browser history, the amount of time someone spends on a particular website and other information, but it would not allow the government to view the content of a site.

FBI Director James Comey has explicitly asked for the provision, which he has framed as a natural move to clarify current law.

But privacy advocates warn it would be a gross expansion of the government’s ability to use National Security Letters at risk of Americans’ privacy.

“I know we’ve had some wonderful people in our government, no matter which administration it might be,” Leahy said on Thursday. “But I worry any time you get a lot of extra powers, there’s always the potential for abuse.”

Cornyn’s proposal “would swallow up the protections this bill offers to the American people,” Lee added in a statement, after asking Grassley to pull the bill from the committee’s calendar.

“While there are other concerns we had hoped to negotiate, the National Security Letter amendment is something I cannot in good conscience have attached to this bill.”

Cornyn was unmoved and predicted on Thursday that the bill “would pass,” even with his National Security Letter amendment.

A similar provision was inserted into an annual policy bill that passed through the Senate Intelligence Committee earlier this year, in a sign of the focus on the issue from some corners of the Senate.

“I hope discussions continue to try to move forward,” Grassley said on Thursday. “It seems to me there are large areas of consensus, and it should be possible to reach a compromise that a large majority of the committee can support.”

There are also other concerns about the email privacy bill, however, making progress in the near-term difficult.

Sen. Dianne Feinstein (D-Calif.), for one, pointed to the effects the new restrictions might have on civil enforcement agencies such as the Securities and Exchange Commission.

“I’m glad the vote isn’t coming today, because my vote would be ‘no,’ ” she said. “To pass a bill that the Securities and Exchange Commission is not going to support and believes hamstrings their actions is not something I am willing to do.”