Law Enforcement, Privacy Supporters To Square Off at Email Privacy Bill Hearing
Tuesday’s House Judiciary Committee hearing on the Email Privacy Act (HR-699) is shaping up as a showdown between law enforcement officials, who say the legislation will hinder their investigations, and civil liberties and privacy supporters, who say the 30-year-old Electronic Communications Privacy Act (ECPA) needs to be updated. That's according to prepared testimony from the witnesses.
Sign up for a free preview to unlock the rest of this article
Timely, relevant coverage of court proceedings and agency rulings involving tariffs, classification, valuation, origin and antidumping and countervailing duties. Each day, Trade Law Daily subscribers receive a daily headline email, in-depth PDF edition and access to all relevant documents via our trade law source document library and website.
Paul Rosenzweig, a former deputy assistant secretary for policy at the Homeland Security Department, who's testifying, told us Monday he would be “happy” if HR-699 would pass in “some form like this because it’s important and essential.” He said there may be other outstanding issues such as U.S. application of extraterritorial law, how the country deals with the global communications systems and information sharing and privacy between the U.S. and the EU, but it’s important to pass something that protects the content of people’s electronic communications. Rosenzweig is associated with the Heritage Foundation and Red Branch Consulting.
Rosenzweig said law enforcement officials are upset about being required to issue warrants rather than subpoenas under this bill and provide notice within a certain period of time to people who are under investigation. "No police officer ever wants to give up power that he has,” Rosenzweig said. “Because they don’t know when it’s going to come back and bite them in the behind.” The point is to find a “reasonableness standard” in the middle “that adequately measures both the security benefits and the privacy [benefits]. And as I said in my testimony, this one seems to be pretty fundamental,” he said.
Center for Democracy and Technology Vice President-Policy Chris Calabrese sees ECPA’s “foundational value” as balancing people’s right to privacy in the content of their communications with law enforcement’s legitimate needs, but that law hasn’t kept up with rapid technological change, he will testify. While HR-699 doesn’t fix all the problems, it solves the issue that disclosing content of email and other electronic communications by providers “is subject to one clear legal standard -- a search warrant issued based on a showing of probable cause,” he said.
Richard Salgado, Google director-law enforcement and information security, who oversees government requests to user information including ECPA, said in testimony that the company "strongly supports" HR-699 in part because of the warrant required to access emails and other electronic communications "in all instances." He cited the 6th U.S. Court of Appeals 2010 opinion in U.S. v. Warshak, which essentially said ECPA violates the Fourth Amendment by not requiring law enforcement to obtain a warrant. "It is embraced by companies and observed by governmental entities," he said, saying HR-699 "will have no impact ... on the government's efforts to combat terrorism" under the Wiretap and Foreign Intelligence Surveillance acts.
The bill “in its current form, poses significant risks to the American public by impeding the ability of the SEC and other civil law enforcement agencies to investigate and uncover financial fraud and other unlawful conduct,” said Andrew Ceresney, director of the SEC Enforcement Division, in written testimony. He said HR-699’s requirement to obtain a criminal warrant would prevent the SEC from conducting investigations because it and other civil law enforcement agencies can't do so: “We would effectively not be able to gather evidence, including communications emails directly from an ISP, regardless of the circumstances.” He said if the bill passes, even those who are served a subpoena would be “less forthcoming” since they know the agency lacks authority to obtain emails.
The requirement that law enforcement agencies obtain a warrant would also make “make our job harder, and do nothing to make it easier,” said Richard Littlehale, Tennessee Bureau of Investigation assistant special agent in charge, in prepared testimony. “It will negatively impact our investigations in areas ranging from online child exploitation and kidnapping response to murder, drug trafficking, and organized crime.” He said ECPA needs changes, but it should include provisions that “soften the impact of higher proof standards on investigations and guarantee that the process law enforcement does obtain is answered appropriately.”
National Association of Assistant United States Attorneys President Steven Cook said in prepared testimony that HR-699 brings part of ECPA -- the 180-day rule -- in line with current email usage and storage practices and court rulings. Under the rule, law enforcement officials can obtain an email from an electronic communication service provider without showing probable cause if the email has been stored by that provider for more than 180 days, he said.
But Cook said the Email Privacy Act goes much further and “fails to recognize the exceptions to the warrant requirement including the emergency aid, exigent circumstances and consent exceptions.” He said Congress will create “an unprecedented and unnecessary barrier to law enforcement access,” especially when time is critical to an investigation. He added that the bill would also “pour more dirt into an already muddy pond” with new inconsistent definitions and "unfamiliar and unique legal requirements."