Senate Republicans are holding up unusually popular email privacy legislation in order to attach a number of proposals to the bill—one of which would expand federal surveillance powers.
The Senate Judiciary Committee on Thursday delayed holding a previously-scheduled vote on the ECPA Amendments Act. The proposal passed the House late last month by a 419-0 margin.
Currently, federal law enforcement officials only need a subpoena from a judge to gain access to emails that are more than six months old. The ECPA Amendments Act would force them to get a warrant beforehand.
“ECPA” refers to the Electronic Communications Privacy Act of 1986, the Reagan Administration-era bill that established the current set of rules.
Committee Chair Chuck Grassley (R-Iowa) said he was ready to advance the legislation, but held off due to differences among cosponsors on the panel.
One of those backers, Senate Majority Whip John Cornyn (R-Texas), said he wanted to tack on to the bill what he described as a major FBI “legislative priority”–the expansion of what can be obtained without a warrant by federal agents, through so-called National Security Letters (NSL).
“This reflects the Obama administration’s position,” Cornyn noted during the committee’s meeting. “You don’t usually have me coming in here advocating for the administration’s position, but I happen to agree. They’re right on this one.”
Cornyn’s proposal was described before the committee in February by FBI Director James Comey as a “fix” for a “typo.”
“There is essentially a typo in the law that was passed a number of years ago that requires us to get records, ordinary transaction records, that we can get in most contexts with a non-court order,” Comey explained.
The FBI Director said that because the records don’t involve content of any kind, the Bureau should be able to get them en masse simply by asking a Foreign Intelligence Surveillance Act (FISA) Court.
The secretive, mostly non-adversarial judicial body has come under increasing scrutiny since 2013, when former NSA contractor Edward Snowden revealed how it was being used to approve mass surveillance on US citizens.
Cornyn claimed Thursday, however, that federal law is currently “preventing the FISA court from focusing on important work we all want it to do.”
Under Cornyn’s proposal, the FBI would be able to more easily obtain Americans internet records, including their “login history, length of service….types of service and means and sources of payment for service.” It would also help federal agents obtain Americans’ IP addresses, “and session times and durations for an electronic communication.”
Currently, the Bureau can only use NSLs to obtain a US citizen or organization’s “name, address, length of service, and local and long distance toll billing records.”
Another Republican proposal, offered by Sen. Orrin Hatch (R-Utah) was less controversial. A bipartisan bill backed by fellow committee member Chris Coons (D-Conn.), Hatch’s amendment would update how cops in the US interact globally with data.
“The legislation before us does not touch upon perhaps the most significant and difficult privacy issue we now face: how to safeguard communications on an international basis,” Hatch said.
He explained that because the federal government believes it can obtain information belonging to anyone, anywhere in the world, simply through a US judge issuing warrant, new procedures must be established.
“Such overreach has significant implications for multinational businesses and their customers,” he said.
Some of the ECPA Amendments Act co-sponsors, both Democrat and Republican, did not necessarily share their colleagues enthusiasm for broadening the debate.
“I was surprised to see how many Republican amendments were circulated last night, even by cosponsors of this bipartisan bill,” Sen. Pat Leahy (D-Vt.) said during his opening remarks.
The committee’s ranking member, Leahy said “Democrats circulated no amendments so that we could move forward and get this to floor, especially after the extraordinary vote in the House.”
Another original cosponsor who noted working on the legislation for a half-decade, Sen. Mike Lee (R-Utah) said he was looking forward to resolving differences over “the next few weeks.”
“It’s important to remember that our emails and our cloud storage have become our new ‘papers,’ for all functional purposes,” Lee said, referring to the constitutional prohibition on warrantless searches.
