House Judiciary Generally Supports ECPA Update Bill
House Judiciary Committee members appeared largely supportive of the Email Privacy Act during a hearing Tuesday on HR-699, which would update the 1986 Electronic Communications Privacy Act (ECPA). The bill, sponsored by Reps. Kevin Yoder, R-Kan., and Jared Polis, D-Colo., has more than 300 co-sponsors, but it has languished in subcommittee since it was introduced in March. Lawmakers such as Reps. Louie Gohmert, R-Texas, who’s not a cosponsor, and Sheila Jackson Lee, D-Texas, who is, said during the hearing they would like to see the bill go to markup. When asked whether a markup is planned, a House Judiciary aide emailed that Chairman Bob Goodlatte, R-Va., had a good hearing and highlighted some issues that need to be addressed.
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Witnesses representing law enforcement and other government agencies took issue with parts of HR-699 that would require them to get a search warrant in all instances rather than a subpoena, which isn’t based on probable cause and isn’t reviewed by a judge before being issued. That was expected (see 1511300009). National Association of Assistant United States Attorneys President Steven Cook said the bill doesn't recognize any well-established exceptions to the warrant requirement such as emergency aid. “I know of no other area of the law where this is the case,” he said.
HR-699 also requires agencies to contact third parties and notify them of a search. In responding to a question from Rep. Tom Marino, R-Pa., about how the bill could be fixed to satisfy the law enforcement community, Cook, who didn’t answer the question, said “the concern that we have is many of these investigations, whether it’s child pornography or any other type of investigation ... involve dozens, sometimes hundreds -- or thousands sometimes in child pornography cases -- of targets. For us, to get the content and then have to let the target of the investigation know is a new discovery requirement that puts the target whether it’s terrorism or otherwise on notice that we’re looking at them.”
Center for Democracy and Technology Vice President-Policy Chris Calabrese said he didn’t think such provisions would obstruct investigations, in response to a question from Jackson Lee. “We’re codifying what amounts to existing practice and existing protections under the Fourth Amendment,” he told her. “We’re also saying that you should have notice when someone does a search of your most private, electronic home. To be clear, unlike a physical warrant where you get that notice immediately, we’re actually delaying notice for 10 days here so law enforcement gets a head start. And then we’re allowing a gag provision, which says that, in important circumstances, you’ll never get that notice. I think these are all pretty basic protections for anyone.” He said there may be some “issues around the edge,” but they can be addressed in markup.
There have been two important developments since March 2013, when he last testified about this issue before Congress, said Richard Salgado, Google director-law enforcement and information security. He said the Supreme Court issued a landmark decision in Riley v. California, which said officers must obtain a warrant before searching contents of a seized cellphone. He also said many states such as California, Hawaii, Maine and Texas are bringing state ECPA versions in line with the Fourth Amendment. “States are appropriately recognizing that Fourth Amendment protections ought to extend to the sensitive data that’s stored in the cloud,” said Salgado. “HR-699 represents an overdue update to ECPA that would ensure electronic communications content [is] treated in a manner commensurate with other papers and effects that are protected by the Fourth Amendment.”
Rep. Jim Sensenbrenner, R-Wis., who appeared unsympathetic to the law enforcement witness arguments, asked if it would be constitutional for Congress to give civilian agencies such as the SEC authority to subpoena email content service providers. Cook, Andrew Ceresney, who heads the SEC Enforcement Division, and Richard Littlehale, Tennessee Bureau of Investigation assistant special agent in charge, said yes, while Calabrese, Salgado and Red Branch Consulting founder Paul Rosenzweig, a former Homeland Security Department official, said no. Rosenzweig said that's what the 6th U.S. Circuit Court of Appeals 2010 opinion in U.S. v. Warshak determined. Littlehale said a due process proposal from the SEC offers a significant amount of protection, which is the "same sort of protection contemplated by the Fourth Amendment," and courts would view that as sufficient.