U.S. SENATOR PATRICK LEAHY

In Rare Court Filing, Senator Objects to Panel’s Interpretation Weakening Privacy Standards

(MONDAY, Nov. 15) -- Senator Patrick Leahy took the unusual step Monday of submitting a legal brief in a federal appeals case arguing against the court’s ruling eroding privacy protections of electronic mail.

A leading privacy advocate during his three decades in the U.S. Senate, Leahy submitted an amicus brief in the case of United States V. Councilman being considered en banc by the First Circuit Court of Appeals. Leahy was the original sponsor of the 1986 Communications Privacy Act (ECPA) that is at the center of the controversial case, which threatens to weaken the privacy protections given to electronic mail correspondence.  

In June, a three-member panel of the First Circuit ruled that under ECPA it was effectively permissible for an Internet Service Provider, (ISP), without permission, to systematically intercept, copy and read its customers’ incoming emails for corporate gain as the messages were being transmitted.  This decision if upheld would not only mean that ISPs could snoop in customers’ emails, but it would permit the government to conduct searches without complying with the wiretap procedures that have been a standard part of investigative practice to date.  The Department of Justice appealed that decision, and the case is now set for reconsideration before the full court. 

As the chief author of ECPA, Leahy, in a rare step, offered a friend-of-the-court brief objecting to the panel’s decision weakening the privacy protections he pushed to pass almost 20 years ago.  In 1986 Congress passed ECPA to update the Wiretap Act.  It was a careful, bipartisan and long-planned effort to bring privacy protection to the modern age.

“In a strained reading of the Electronic Communications Privacy Act (ECPA), the majority in this case condoned what is an unacceptable privacy intrusion that is inconsistent with congressional intent of this law and the commonly-held understanding of the protections provided by ECPA,” said Leahy, who is the ranking Democratic member of the Senate Judiciary Committee.  “I introduced this legislation with one purpose in mind – to ensure that Americans could enjoy the same amount of privacy in their online communication as they do in the offline world.”

The Court is expected to hear the case on Dec. 8.  A copy of the legal brief is available upon request.

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