Privacy in America — Down the Proverbial Drain

Equal Justice Under Law - Has Become One Huge Joke

A very disturbing story and a tale of  backtracking or backpedaling in the Senate from a Senator (Sen. Patrick Leahy, D-VT), who was supposed to have been moderate, level-headed, and a fighter for the people and our privacy. I guess I was wrong.

Here  is the link the to story, which follows in part.

Leahy previously said his bill boosts Americans' e-mail privacy protections by "requiring that the government obtain a search warrant."  That's no longer the case.

The heart of the story: Leahy's rewritten bill would allow more than 22 agencies -- including the Securities and Exchange Commission (SEC) and the Federal Communications Commission (FCC) 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. (CNET obtained the revised draft from a source involved in the negotiations with Leahy.)

This was Leahy in June 2011:  As the chairman of the Senate Judiciary committee, he said today he is optimistic that Congress would update a 1986 law, crafted in the pre-Internet era of telephone modems and the black-and-white Macintosh Plus, to protect the privacy of Americans who use the Internet and mobile phones.

This from the DOJ in April 2010:  The U.S. Justice Department has abruptly abandoned what had become a high-profile court fight to read Yahoo users' e-mail messages without obtaining a search warrant first. 

In a two-page brief filed Friday, the Obama administration withdrew its request for warrantless access to the complete contents of the Yahoo Mail accounts under investigation. CNET was the first to report on the Denver case in an article on Tuesday. Yahoo's efforts to fend off federal prosecutors' broad request attracted allies -- in the form of Google, the Electronic Frontier Foundation, the Center for Democracy and Technology, and the Progress and Freedom Foundation -- who argued that Americans who keep their e-mail in the cloud enjoy a reasonable expectation of privacy that is protected by the U.S. Constitution.

Leahy in May 2011 (*his senate homepage):  Senator Patrick Leahy (D-Vt.) Tuesday introduced anticipated legislation to update the Electronic Communications Privacy Act (ECPA), one of the nation’s premier digital privacy laws. Leahy was the lead author of the 1986 law, which was enacted to protect the privacy of Americans’ electronic communications.

So, what the hell has happened? No warrant; no probable cause? So, what would trigger their prying eyes into our emails?  A hunch, a guess, itchy palms, false rumor, a snitch, a gut feeling, or a funny look or odd e-mail address - what pray tell would cause they prying.

What can be done? One obvious option for the Digital Due Process coalition (includes: 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 the simplest: If Leahy's committee proves to be an insurmountable roadblock in the Senate, try the courts instead.

For example: 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 ruled that police needed a search warrant for GPS tracking of vehicles. Some courts have ruled that warrantless tracking of Americans' cell phones, 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 ruling by the 6th Circuit Court of Appeals in 2010.

The battle is just beginning, again, it seems. Stay tuned.