Tech Sector Opposes Civil Agencies' Proposed Warrant Carve-out in ECPA Revamp Legislation
Tech-sector stakeholders urged the Senate Judiciary Committee Wednesday to reject the federal government's proposal for an exemption to some provisions in a possible revamp of the 1986 Electronic Communications Privacy Act, with Google Director-Law Enforcement and Information Security Richard Delgado telling the committee that agencies' objections to current revamp proposals are ultimately “really just distractions.” Department of Justice, FTC and SEC officials continued to oppose provisions in current ECPA revamp bills like the ECPA Amendments Act (S-356) that they believe will hinder law enforcement efforts. The Wednesday hearing was Senate Judiciary's first on ECPA legislation since 2011, though the committee advanced an earlier version of the ECPA Amendments Act in 2013 (see report in the April 26, 2013, issue). Senate Judiciary ranking member Patrick Leahy, D-Vt., previously proposed attaching S-356's language as an amendment to the controversial Cybersecurity Information Sharing Act (S-754).
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Senate Judiciary's consideration of ECPA revamp legislation is still at an early stage, but the committee should ensure that any bill it moves to full Senate consideration must “strike the right balance” between the needs of law enforcement agencies and protecting citizens' privacy and civil liberties, said committee Chairman Chuck Grassley, R-Iowa. Changes to ECPA's legal standards to address email privacy should be counterbalanced by ensuring that ISPs “are granting law enforcement the necessary access” to encrypted emails, Grassley said. Leahy urged Senate Judiciary to advance S-356, saying the bill's passage should be a “no-brainer.” The bill has 24 co-sponsors, including Leahy and fellow original sponsor Sen. Mike Lee, R-Utah. The similar Email Privacy Act (HR-699) has 292 co-sponsors.
Federal officials urged Senate Judiciary to advance ECPA revamp legislation that would allow law enforcement to seek court orders to obtain email information only related to civil cases. Justice Principal Deputy Assistant Attorney General-Office of Legal Policy Elana Tyrangiel argued that S-356 would require all enforcement agencies to obtain search warrants based on criminal probable cause rules that don't apply in civil cases. The warrant requirement is likely to hinder investigations at many civil enforcement agencies like the FTC and SEC, officials from those agencies testified. Requiring the FTC to follow S-356's warrant requirement would restrict the agency's access to formerly publicly available information like old ads that are often critical to FTC investigations, said Bureau of Consumer Protection Office of Technology Chief Counsel Daniel Salsburg. Applying the warrant requirement to the SEC would similarly “impede” the agency's access to critical evidence in its investigations, said Enforcement Division Director Andrew Ceresney.
Sen. Sheldon Whitehouse, D-R.I., indicated interest in the federal agencies' proposal, asking officials if they sought “a proposal under which the government would be able to make a showing that an ex parte provision is necessary and go forward without notice to the subscriber?” Ceresney replied that agencies are seeking a “limited ability to obtain ISP emails in appropriate cases” when a user has refused an agency subpoena.
The agencies' proposal for a noncriminal search warrant “would be a dramatic expansion of their authority to get at ordinary citizens' inboxes,” said Center for Democracy & Technology Vice President-Policy Chris Calabrese. Such a warrant would be a “huge power grab from civil agencies no matter how they frame it,” Calabrese said. The agencies' proposal would undermine ISP subscribers' “reasonable expectations of privacy and encroach upon the core privacy protections afforded by the Fourth Amendment,” Salgado said.
S-356's provisions provide a “very elegant way” to fix provisions in ECPA rendered unconstitutional in United States v. Warshak, Salgado said. The U.S. Court of Appeals for the 6th Circuit found in its 2010 Warshak ruling that it was unconstitutional for the federal government to demand that ISPs disclose email information without a search warrant (see report in the Jan. 26, 2011, issue). Justice, the FTC and SEC all comply with the 6th Circuit's ruling but aren't barred from seeking the information via subpoenas, officials said.
Other industry groups also urged Senate Judiciary to move forward on S-356, with Software & Information Industry Association Senior Vice President-Public Policy Mark MacCarthy saying in a statement that Senate Judiciary should reject “any effort to create exceptions for government agencies, which would lead to lesser protections for information stored remotely than in the home.” CEA President Gary Shapiro also urged Congress to pass S-356 “swiftly,” saying in a statement that “quick action is needed to protect the privacy rights of Americans and properly regulate government access to private communications stored by third parties.”