House Judiciary Committee Approves Bill to Protect the Fourth Amendment in the Digital Age

Press Release

The House Judiciary Committee today approved by a vote of 28-0 the Email Privacy Act (H.R. 699) to protect Americans' privacy and public safety in the digital age.

Nearly 30 years ago, Congress passed the Electronic Communications Privacy Act of 1986 to provide a fair balance between the privacy expectations of American citizens and the legitimate needs of law enforcement agencies. The law sets forth a system to protect the privacy rights of customers and subscribers of computer network service providers and governs requests to obtain stored content, records, or other information, which includes stored emails, text or instant messages, documents, videos, or sound recordings stored in the cloud. ECPA applies not only to federal criminal investigations and prosecutions, but to state and local investigations and prosecutions, public safety requests, and civil investigations in which stored communications of these types of information are sought.

There is broad consensus that ECPA is outdated and contains insufficient protections for Americans' privacy. The goals of the Email Privacy Act are to modernize ECPA to protect Americans' privacy and provide law enforcement with tools needed for its investigations. It currently has over 300 cosponsors. At the markup, the Committee adopted a substitute amendment to the Email Privacy Act offered by House Judiciary Committee Chairman Bob Goodlatte (R-Va.), Ranking Member John Conyers (D-Mich.), Courts, Intellectual Property, and the Internet Subcommittee Chairman Darrell Issa (R-Calif.), Courts, Intellectual Property, and the Internet Subcommittee Ranking Member Jerrold Nadler (D-N.Y.), Representative J. Randy Forbes (R-Va.), Crime, Terrorism, Homeland Security, and Investigations Subcommittee Ranking Member Sheila Jackson Lee (D-Texas), Representative Suzan DelBene (D-Wash.) and Representative Mike Bishop (R-Mich.). This bipartisan substitute amendment is a carefully-negotiated agreement to update the procedures regarding government access to stored communications content and records and retains the core goals of the Email Privacy Act.

Below are statements from House Judiciary Committee Chairman Bob Goodlatte (R-Va.) and Representative Kevin Yoder (R-Kan.), sponsor of H.R. 699, on today's Committee vote.

Chairman Goodlatte: "The Electronic Communications Privacy Act of 1986 is a decades-old, complex statute that governs the collection of vital evidence in a wide array of investigations. Reforming this outdated law has been a priority for me as chairman of the House Judiciary Committee and I have worked with members and stakeholders for years to bring this law into the 21st century.

"The Email Privacy Act modernizes ECPA to ensure it keeps pace with ever-changing technologies. These updates to the law protect Americans' constitutional rights and provide law enforcement with the tools they need to protect public safety. I thank Congressman Yoder for introducing this important bill and for working with the Committee to fine-tune it. With a vast majority of members supporting this bill, I urge House Leadership to bring it to the floor quickly."

Rep. Yoder: "Today is a great day for not only the Fourth Amendment advocates who have fought long and hard to move the Email Privacy Act, but also for all Americans, who are one step closer to having private and secure digital communications. I want to thank Chairman Goodlatte and the Committee for coming to an agreement that achieves the goals of the most-widely supported legislation in Congress. Mr. Speaker, now's the time to take up this bill on the House floor and send it to the President's desk for his signature."
Key Provisions of H.R. 699, as amended:

Warrant requirement: The bill creates a uniform warrant standard for law enforcement to obtain the content of communications in criminal investigations. ECPA warrants will continue to be executed with the provider since, as with any other third-party custodian, the information is stored with them. It allows the provider to notify its customers of receipt of a warrant, court order, or subpoena, unless the provider is court ordered to delay such notification.

Remote Computing Services: The bill maintains current law that delineates which remote computing service providers -- or cloud providers -- are subject to the warrant requirement for content in a criminal investigation. ECPA has traditionally imposed heightened legal process and procedures to obtain information for which the customer has a reasonable expectation of privacy, namely emails, texts, photos, videos, and documents stored in the cloud.

Allows Law Enforcement to Access Public Information: ECPA currently makes no distinction between content disclosed to the public, like an advertisement on a website, versus content disclosed only to one or a handful of persons, like an email or text message. The result is that law enforcement would be required to obtain a warrant even for publicly-disclosed content. The bill clarifies that commercial public content can be obtained with a process other than a warrant.

Maintains Congress's investigative power: The bill clarifies that nothing in the law limits Congress's authority to subpoena information from third parties in furtherance of congressional oversight.

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