The Senate will be taking on much-needed digital rights legislation in the new 113th Congress, including requiring law enforcement to have warrants before poking around online communications.
In a speech at Georgetown University Wednesday, Senate Judiciary Committee Chairman Patrick Leahy (D-Vt). stressed the need for defending civil liberties, protecting privacy, improving transparency and making a push to require a warrant before law enforcement has carte blanche to read people's emails, social media messages and other modes of online communication.
We're Trusting These Guys?
Congress has been questioned of late for implementing some eyebrow-raising initiatives that have thrown the Fourth Amendment under the bus and seemingly worked towards the opposite of Leahy's plans (think FISA, the Video Privacy Protection Act, and half a dozen other problematic regulations). But if Leahy has his way, this new Congress could create legislation to help both consumers and creators protect their data. Leahy, who voted against FISA and was the chief proponent of last year's U.S. patent law reform, may be the right man to push these bills along.
In his speech, Leahy expressed concern over the potential loss of privacy that comes with the expanding use of drones in civilian life. The Federal Aviation Administration predicts that by the end of the decade, 30,000 commercial and government drones could be flying over U.S. skies. With that outcome literally on the horizon, Leahy plans on making drones the subject of Congressional hearings, indicating that legislators need to focus to make sure that technology will not be used to erode peoples’ privacy.
"I am concerned about the growing use of drones by Federal and local authorities to spy on Americans here at home," he said Wednesday. "We make a tragic mistake thinking that merely giving up more and more of our privacy will make us safer. It will not. Security and liberty are both essential in a free society, and we cannot forsake one for the other."
Leahy also spoke about insuring transparency, specifically referring to press freedoms. The son of Vermont printers said he has "concerns about the press being shut down." While he's against the release of classified government documents (think WikiLeaks), he says he will work to "make sure that legislative efforts to prevent classified leaks does not infringe upon our fundamental freedoms, including freedom of the press."
It's a pretty tricky balance Leahy is striking here, but this may be a way of saying he doesn't support penalizing journalists who publish formerly privileged documents.
Walling Off Our Data
The last, and perhaps most important, tenet of Leahy's plan was a promise to update outdated cyber security laws, specifically the 27-year-old Electronic Communications Privacy Act (ECPA). Right now the ECPA gives police and government agencies the ability to read people's emails and digital communications - without a warrant.
Leahy, who turns 73 in March, has said the reason he's stayed chairman of the Judiciary Committee is to reform ECPA. He says electronic documents should have the same legal protection as paper documents. It won't be easy to fix this, but he's making it a top priority.
"It is going to be a fight," he said in his speech. "But I think people are realizing they don't have to give up their ability to use the Internet while at the same time guarding their freedom."
What The Speech Didn't Say
However, for all the good will towards modifying these laws, a few major items were missing from Leahy's speech. Another potential change to the ECPA is currently on the table in the Senate, one which would require all text messages to be archived and available to law enforcement. This under-the-radar item is a proposal and yet to be brought to the Congressional floor. Let's hope Leahy can muster enough support to put the kibosh on this proposed legislation.
And let's not forget the thousand pound elephant in the room: Very much missing from the speech was an update on whether Congress will push for new versions of SOPA and PIPA. Leahy himself seems to have one foot in the pool and one out when you look at his record. This is the Senator who wrote PIPA and COICA (Combating Online Infringement and Counterfeits Act). Yet he was also behind a failed FISA amendment reform that would have shortened the law and decreased the enforcement period to three years -- which would have been good. Based on this track record, either he erred and learned from these past mistakes...or we're all buying what he's selling. And it's not worth it. Fingers crossed the truth is the former, not the latter.
Today, Friday, is Internet Freedom Day. And as the the world celebrates the life of the too-soon-departed Aaron Swartz and the one year anniversary of the Internet blackout victory against SOPA and PIPA, big change looms. Let's hope Leahy has our best interests at heart when it comes to protecting our privacy.
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