In approving a non-controversial bill about video-rental records, Congress had the chance to stop warrantless email searches, but they passed it up.
As the week wound down before the holiday break, the senate sent President Obama a bill that gives sites like Netflix the option of allowing users to automatically share their viewing history with their social networks on Facebook.
This was relatively uncontroversial, making video sites no different from other services (like Spotify, say) that already have this kind of easy sharing. In fact, the prohibition only existed in the first place because Congress singled out video-rental history as particularly private following an incident in 1987 when then-Supreme Court nominee Robert Bork's video-rental history was leaked to the Washington City Paper.
But the bill was only so uncontroversial because the Senate stripped it of a much more significant proposal: amendments offered by Senator Patrick Leahy of Vermont, which would have required a warrant for law-enforcement agents to access the contents or metadata of emails that have been stored remotely for more than 180 days. Current law only requires a warrant for obtaining more recent communications. Once emails are older, government agents can obtain them with mere subpoenas, which require only a demonstration that the information would be useful to an ongoing investigation.