On December 1, the House Judiciary Committee held a hearing on H.R. 699, the "Email Privacy Act," legislation dedicated to reforming and updating the 1986 Electronic Communications Privacy Act (ECPA).
Currently under ECPA, if a government entity is seeking access to an individual's electronic communications held by an Internet service provider (ISP), it is required to obtain a search warrant, based on probable cause and signed by a judge, prior to being granted access to those records. ECPA also allows government agencies to use administrative subpoenas rather than warrants for communications that are 180 days or older. This latter provision is now considered very outdated, and most ISPs for the last several years have required the government to obtain a warrant before access is given to any communications regardless of age.
The Email Privacy Act would modernize the ECPA by eliminating the different requirements for access to the communications based on their age. It would also eliminate the ability of government agencies to use administrative subpoenas. The bill sets timelines for law enforcement or government entities to alert the individual in question of a warrant and gives the government the ability to delay that notification based on certain criteria.
While the committee chairman, Bob Goodlatte, supports the main functions of the bill, he called for the hearing to discuss potential changes to H.R. 699; in particular, he wanted to explore adding exemptions to the bill for emergencies and cases in which the individual in question gives permission to the agency requesting access. His intent with these proposals is to harmonize warrant requirements in the physical and virtual worlds to maintain consistency for law enforcement. In addition, he is pushing for an amendment that would allow civil investigative agencies to use administrative subpoenas regardless of age, since courts have often held subpoenas as sufficient.
The hearing included witnesses from the Securities and Exchange Commission (SEC), the National Association of Assistant United States Attorneys, the Tennessee Bureau of Investigation, Google, and the Center for Democracy and Technology. The SEC was very adamant about the need to ensure government entities have access to communications in investigations, while Stephen Cook, president of the National Association of Assistant US Attorneys, stressed that law enforcement cannot be forced to wait for a warrant in emergency situations, which could prove costly to an investigation. Cook said, "It is well settled that a warrantless search may be conducted of a person's most private place — his or her home — if exigent circumstances exist.... There is simply no reason to provide email communications with more protection than that afforded to a person's home."
Google's director for law enforcement and information security, Richard Salgado, explained the other side of the argument, though: "The power to compel [Internet service] providers to disclose the content of users' communications should be reserved for criminal cases.... Congress should be deeply skeptical of efforts to draft around the Fourth Amendment, which is what some governmental entities are asking it to do." He went on to note that government entities have many options available to them if the individual in question does not turn over the requested documents after being issued a subpoena directly.
The bill is not expected to move prior to the holidays, but EDUCAUSE continues to monitor the legislation as it develops.
Jen Ortega serves as a consultant to EDUCAUSE on federal policy and government relations. She has worked with EDUCAUSE since 2013 and assists with monitoring legislative and regulatory proposals across a range of policy areas, including cybersecurity, data privacy, e-learning, and accessibility.