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Senate Committee OKs Electronic Privacy Measure


The Senate Judiciary Committee voted yesterday to make it a little harder for police to read your old emails. It's something privacy groups and tech companies have wanted for years. As NPR's Martin Kaste reports, law enforcement groups are less pleased.

MARTIN KASTE, BYLINE: Get a warrant - that's what you can tell the police when they want to search your house, your car or your inbox - but not if those emails are more than six months old. Under a 1986 law, older online documents require only a subpoena; and the police don't have to show a judge probable cause of criminal activity. But that may be about to change.

SEN. PATRICK LEAHY: Those in favor, the bill is now amended. Signify by saying aye.


KASTE: The Senate Judiciary Committee voted yesterday to extend search-warrant protection to almost all online documents, regardless of age. The issue has been floating around Congress for years, but Republican Chuck Grassley says there's suddenly been a lot more interest in online privacy.

REP. CHUCK GRASSLEY: (Laughter) And spurred by what happened as a result of Petraeus.

KASTE: The FBI's outing of David Petraeus's extramarital affair reminded everyone just how sensitive old emails can be.

GRASSLEY: I think there's a shift between now and last summer, or last fall, when we did this.

KASTE: The shift in attitude may also be a response to the Supreme Court, which in January, hinted strongly that Congress needs to update privacy laws for the digital age. Grassley agrees that updating is necessary, but he warned the committee's Democratic majority against making things too hard for law enforcement. Similar warnings are coming from law enforcement groups; Konrad Motyka is head of the FBI Agents Association.

KONRAD MOTYKA: Our contention would be that there really hasn't been any demonstrated need to change the law. There have been no prominent cases - or any cases at all, of the law that as exists now, being abused.

KASTE: He says requiring search warrants for old online content will also mean notifying the owners of that content. The bill does allow the notification to be delayed, but Motyka says that's not foolproof.

MOTYKA: In some cases, that could be subject to administrative or technical errors that could lead to disclosure to the targets of investigations - people like pornographers and terrorists, and so on, that they're being investigated.

KASTE: In practice, ending the six-month rule would affect primarily federal investigations. State and local law enforcement already tend to get warrants for online content, no matter how old.

Ron Sloan is the director of the Colorado Bureau of Investigation, and the president of the Association for State Criminal Investigative Agencies. While he's not a fan of changing the federal law, he acknowledges that at least in Colorado, police prefer to get a warrant for online content, if they have the time.

RON SLOAN: Because it's obviously going to hold up better under the scrutiny of the judicial system. And if we're serious about prosecuting those cases, we want the best opportunity for it to hold up.

KASTE: Law enforcement groups are less worried about six-month-old emails than they are about the bill itself; and what might get attached to it, when it goes to the full Senate. Several Democrats have called for a warrant requirement for all kinds of the digital data that cops find useful - cellphone location records, especially. As one investigator puts it, the police didn't write the old law but now, they're not asking anyone to change it, either.

Martin Kaste, NPR News. Transcript provided by NPR, Copyright NPR.

Martin Kaste is a correspondent on NPR's National Desk. He covers law enforcement and privacy. He has been focused on police and use of force since before the 2014 protests in Ferguson, and that coverage led to the creation of NPR's Criminal Justice Collaborative.
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