Warrant Concerns Could Stymie Email Privacy Bill

Posted December 1, 2015 at 1:56pm

A bipartisan House bill that would require the government obtain a warrant to access emails is facing road blocks as groups including law enforcement and federal agencies seek exceptions.

Despite attracting more than 300 co-sponsors and support from tech companies, opponents of the Email Privacy Act (HR 699) told lawmakers Tuesday at a packed House Judiciary hearing they fear the measure could impede investigations unless there are some exceptions.

“Congress can ensure that we are furthering the legitimate needs of law enforcement  . . .  by joining with the warrant requirement recognized exceptions and procedures,” Chairman Robert W. Goodlatte, R-Va., said. Goodlatte is not a co-sponsor of the legislation, though more than half of the committee’s members are.

The bill aims to update the Electronic Communications Privacy Act of 1986 (PL 99-508) for the digital age and address when law enforcement can access emails. Under current law, the government can access emails without a warrant if they are stored for more than 180 days in the cloud, which refers to a network of remote servers. The legislation would require a warrant no matter how long emails have been stored in the cloud.

While committee members and industry groups agree about the need for requiring a warrant, nuances in the bill have prevented it from reaching markup despite having the highest number of co-sponsors in the current session.

The Securities and Exchange Commission, for example, has raised concerns that even though it would be able to issue a subpoena to an individual, it would be required to obtain a warrant to access information directly from an Internet service provider. The SEC does not have the authority to obtain warrants because it is a civil agency.

Andrew J. Ceresney, director of the SEC’s enforcement division, said the agency needs a way to obtain information directly from the Internet service providers in cases when an individual has not responded fully to a subpoena.

“Unsurprisingly, individuals who violate the law are often reluctant to produce to the government evidence of their own misconduct,” he said.

The SEC is asking for a change to the bill so the agency could use a court order to request information from an Internet service provider.

There’s been significant pushback on that request, though, from the bill’s supporters.

Richard Salgado, director of law enforcement and information security at Google, said such carve-outs for civil agencies would go against the Fourth Amendment. He also argued there are other ways for the agencies to get the information they need even if the target of an investigation doesn’t comply with a subpoena.

Rep. Kevin Yoder, R-Kan., the lead sponsor of the bill along with Rep. Jared Polis, D-Colo., said the concerns should be discussed in a markup, but he added he’s wary of adding exceptions to the warrant requirement for civil agencies.

“I think that would greatly undermine the purpose of the legislation and make it difficult to support,” he told reporters after the hearing.

Yoder also said he does not want to see the bill “weighed down” with provisions from other email privacy legislation after Goodlatte said he plans to take up another bill that would prohibit law enforcement agencies from compelling tech companies to turn over information on foreign customers held in servers overseas.

Goodlatte said the committee plans to hold a hearing soon on “issues surrounding law enforcement access to information located on servers outside the U.S.,” suggesting lawmakers will take up the related Microsoft-backed Law Enforcement Access to Data Stored Abroad Act (HR 1174).

But that bill has less support in Congress and from tech companies, while the Email Privacy Act has much broader support.

“Passing legislation to update the Electronic Communications Privacy Act would make it clear that the warrant standard of the U.S. Constitution applies to private digital information just as it applies to physical property,” Linda Moore, president and CEO of TechNet, said in a statement. The group’s members include Apple, Google and Yahoo.

Special FBI Authority

The hearing also came the day after disclosures about the special authority the FBI has used to compel Internet and communications providers to hand over user information, including full browsing histories.

A court filing made public Monday shows how the FBI is able to conduct digital surveillance outside of requirements for warrants or subpoenas.

Rep. Louie Gohmert, R-Texas, pointed to the use of national security letters as an example of why he doesn’t trust administrations to be careful when using exceptions.