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Looking for Balance in Electronic Communications Privacy Act Update


Location: Washington, DC

Mr. Chairman,

On the agenda, we're prepared to move on the nomination of Angela Dickinson to be the United States Attorney for the Western District of Missouri. And I think that that can be done on a voice vote.

The five judicial nominees on the agenda are on for the first time. There are requests on our side that these be held over.

On the legislation, we're prepared to move on H.R. 2471, the Video Privacy Protection Act Amendment. At the previous mark-up the committee adopted the Chairman's substitute amendment which incorporated significant changes to the Electronic Communications Privacy Act (ECPA). I am prepared to report this out of committee today, but I have a number of reservations with the process in bringing this forward and the substance of the legislation. And, I would expect a number of issues to be addressed before any floor consideration.

ECPA was passed in 1986 and because of developments in technology, is in need of some review. We held a hearing on ECPA and the need to reform it nearly two-years ago and only heard from two federal government witnesses who did not have a cleared administration position. My understanding is there is still no cleared position of the administration even today.

Since our last meeting, we've heard from the privacy advocates, business and industry, and law enforcement about both the support and concerns for the Chairman's ECPA amendment.

While I agree with the business and privacy groups that there is merit to harmonizing the legal requirements for obtaining emails with a search warrant, we would be abdicating our duty if we did not examine the concerns raised by federal, state, and local law enforcement. Additionally, we have heard concerns from civil regulatory agencies such as the SEC that this legislation would significantly impact the SEC's enforcement of the securities laws--including insider trading.

For example, the SEC recently filed a civil case against two individuals that alleges that over a period of years they engaged in a scheme to artificially inflate the financial results of a publicly owned retailer by engaging in a series of fraudulent financial transactions.

During the investigation, the SEC obtained an email using an ECPA authorized subpoena showing that one of the defendants sent an email describing the publicly owned company's commitment to buy certain products and services at inflated prices, and stating "the fake credits that were negotiated with" the company were being used "to hit certain quarterly numbers."

This evidence was particularly important because the defendants were clever and sophisticated and had carefully concealed their scheme.

The SEC subpoenaed the Internet service provider because the individual had failed to produce his personal email in response to a subpoena issued to him almost a year earlier. SEC investigators confronted the defendant with the email the SEC had obtained from the ISP. The defendant then produced his personal email, including this inculpatory one.

In providing technical assistance, the SEC has advised that investigative administrative subpoenas for email from Internet service providers are most valuable in locating the stolen assets from victimized investors, or where the target of the investigation lives outside the United States, or where the target of the investigation claims to have deleted all of their emails, has a damaged hard drive, or simply withholds the evidence. And, it has raised concerns that the Leahy amendment could end up allowing more fraud on consumers and investors.

Additionally, the Department of Justice provided technical assistance and indicated that the amendment would negatively impact civil cases brought by the Justice Department. Notably, they provided an example where the work of the Civil Right Division in cases involving sexual or racial harassment of employees, tenants, and students--specifically when text and email messages, as well as social media--are used.

For example, when the department sues to prevent harassment, the conduct often occurs over a long period of time and may be targeted at multiple victims. Because of the time frame of these cases, department lawyers are sometimes confronted with loss of evidence because victims delete messages that contain disturbing sexual or racist content.

Evidence is also lost because harassers intentionally delete evidence of their conduct. Messages that contain harassing or abusive racist and sexual content are highly relevant in these cases and are typically discoverable.

When the department is unable to obtain these messages directly from victims or harassers, they need the ability to serve civil discovery subpoenas directly on third party providers to obtain evidence of racial and sexual harassment.

On top of this, I am sympathetic to concerns including: whether a limited emergency exemption should exist where time is of the essence, like child abduction cases, and law enforcement concerns about receiving a timely response when a request is made.

Another concern is whether Congress should be setting priorities for response to various types of information requests. For example, in changing all content requests to the search warrant standard, we are delegating authority to every state, local, and federal judge to manage requests for email content. Traditionally, search warrants do not operate like subpoenas where there is up to 14 days to respond.

Search warrants usually require immediate processing and reporting back to the judge within seven days, so judges could be creating their own timetables for response given the statute is silent. This is something we should consider given it could create a hierarchy of response based solely on who the judge is issuing the warrant.

These are important questions, and ones we should be prepared to address in the legislation. A more open process would be helpful in addressing these issues. This was exemplified by concerns that were raised in the media regarding drafts of the legislation that leaked last week.

Instead of drafting this amendment behind closed doors and forcing a vote on a compressed timeframe, we should be working through these concerns in committee. We should hear testimony from the privacy advocates, the businesses impacted, and the law enforcement officers that have to use these tools. Instead, we're asked to vote on this proposal based on one hearing held nearly two years ago.

On top of this concern, the incoming Chairman of the House Judiciary Committee has said "I certainly agree that ECPA is something Congress should look at closely to see if updates or reforms are necessary, but I do not think that it is possible to complete the thorough examination that is needed in the short amount of time we have in this lame-duck session."

I agree with this statement and given that the House isn't going to take this bill up, we should work to ensure we strike the proper balance between privacy and safety--just as we did in 1986 when we first passed ECPA.

I would like to put some letters from a number of law enforcement groups, including the Association of State Criminal Investigative Agencies, Major Cities Chiefs of Police Association, Major County Sheriff's Association, National Sheriff's Association, National Narcotic Officers' Associations' Coalition, and the National District Attorneys' Association, into the record.

Further, I have at least one amendment I would like to offer today at the appropriate time that would begin to address at least one of my concerns.

I will say that despite my concerns, I am willing to report the bill out of committee today given that I believe we can craft the bill in a way that increases email privacy but protects law enforcement's ability to obtain information as part of a criminal investigation. While I don't believe this version strikes the proper balance, I think it is the start of an important discussion.

The Supreme Court's decision last year in U.S. v. Jones, where the Court examined use of a GPS tracking system, discussed, in dicta, broader issues of Fourth Amendment application to evolving technology. The court all but warned Congress to take action on laws such as ECPA and this is a first step in hearing that call. However, we must ensure that we follow an open and transparent process in developing this legislation with input from all stakeholders so we can strike the proper balance in updating these important laws. Thank you.

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