112th Congress Finished Its Term By Taking Away More of Your Privacy, In The Worst Possible Way

Trevor Timm
EFF

The 113th Congress was sworn into office last week and will start regular business later this month. They’ll have a huge, and perhaps unprecedented, slate of Internet-related legislation in the next year, including potentially taking up a dangerous new Internet surveillance bill—which we will detail in the coming days and weeks.

But before they do, they should take a lesson from the 112th Congress on how not to conduct business. In their final official week of existence—and the cover of holidays—the 112th Congress used underhanded and undemocratic tactics to pass two bills that have terrible effects on your online privacy.

Back in November, the Senate Judiciary Committee passed important reform to the Electronic Communications Privacy Act (ECPA), the main privacy law governing email. The law, which was written in 1986 before the world wide web even existed, allows all sorts of things that make no sense today, such as letting the government get emails over 180 days old without a warrant.

But the bill came with a caveat: to get it out of committee, the Senators attached a Netflix-supported amendment which would weaken the Video Privacy Protection Act (VPPA), that would make “frictionless” sharing of videos on social networks easier. EFF stated our opposition to such a compromise, and the connection of the two meant that the weakened video privacy part—passed in 1988 with strong bipartisan support after Robert Bork’s video rental records were publicized in his bid to be a Supreme Court Justice—got little attention. Ultimately, though, getting such important protection for email remained an unequivocally good thing.

But then, under the cover of Christmas, the Senate inexplicably dropped the whole section of the bill devoted to ECPA reform, and just voted on the VPPA bill, weakening our video privacy, while refusing to improve our email privacy.

They were hoping no one would notice they used a disingenuous negotiation process to help weaken arguably America’s strongest privacy law at the behest of a company and leave ordinary Americans with less privacy.

And now, Congress is already floating an even worse compromise for ECPA reform in 2013: a ominous data retention bill that would force companies to keep your text messages for years—even if you delete them—for law enforcement to access.

Then, after they barely had time to break for Christmas, the Senate returned to session a few days later to undermine your email privacy even more. On December 27th, the Senate held one rushed day of debate on the controversial FISA Amendments Act, a 2008 law that allows for warrantless wiretapping of your overseas communications.

The bill, which was passed in 2008 and allowed the Bush administration to sweep the NSA warrantless wiretapping scandal under the rug, was set to expire on December 31, 2012.

Despite having months to vote on the bill, the Senate waited until four days before the bill was going to expire to bring up a vote on it, creating a contrived time crunch, that the bill’s supporters used as cover to advocate that they shoot down all of the privacy and transparency amendments that were so vitally needed.

For years, there’s been ample evidence that the law has been abused, that purely domestic US communications have been collected by the NSA, and the government admitted that the secret FISA court ruled they violated the Fourth Amendment on at least one occasion. You can go here to read the Supreme Court Justices themselves explain how the law allows for the warrantless wiretapping of Americans.

To Congress, apparently, none of these facts mattered.

Before they passed the warrantless spying bill 73-23, they had the chance to pass an amendment would merely have given them general information on how many Americans were being spied on. Yet they voted to be kept in the dark. Another amendment would have merely provided redacted FISA court opinions so the American public could know how the public law was being interpreted by the government. Instead, the Senate voted to uphold secret law.

Neither of these amendments would have drastically affected the NSA’s powers. They were much more modest than the amendments that then-Senator Obama voted on (but didn’t pass) in 2008. And they were specifically written to give the utmost deference to national security concerns.

The 112th Congress should be ashamed by how it rushed to weaken Americans’ privacy in their final week. Let’s hope the 113th Congress has a little more respect for Americans privacy rights and the democratic process.