E-records privacy protection finally “warrants” Hill hearing

picture of sparks flying depicting the fireworks between those arguing over a privacy bill

Sparks flew as proponents of Electronic Communications Privacy Act reform debated those seeking to water down the bill.

Sparks flew this week at the House Judiciary Committee’s long-delayed and much pushed-for hearing on legislation to reform the Electronic Communications Privacy Act as proponents of the Email Privacy Act (H.R. 699) at the witness table and on the Judiciary Committee vigorously rebutted arguments by the Securities and Exchange Commission (SEC), FBI and a group of U.S. prosecutors seeking to water down the bill. Now the most heavily-backed bill in Congress with 305 cosponsors to date (including 28 of 39 Members of the Judiciary Committee itself), H.R. 699 would finally grant all electronic communications and files full Fourth Amendment privacy protection.

Incredibly, under current law e-mails, texts and files stored in the cloud can simply be subpoenaed by law enforcement authorities after they’re more than six months old without a judicial warrant issued for “probable cause,” the standard that has long applied to paper documents and other tangible personal records of all kinds from the minute that they’re created. (As the result of a particularly important judicial ruling in late 2010, virtually all major internet service providers when faced with law enforcement requests for electronic information have insisted that authorities present a judicial warrant. Until a bill like H.R. 699 passes both Chambers of Congress and is signed by the President, however, that won’t be the law of the land.)

As previously reported in District Dispatch, despite enormous bi-partisan support for the past several years, bills to meaningfully reform ECPA have been bottled up in the House Judiciary Committee. Despite its extraordinary backing, H.R. 699 has been no exception. Scheduling of this week’s hearing, therefore, was widely hailed by Beltway press as a significant win for pro-ECPA reform forces (libraries very vociferously among them) and witnesses used this week’s hearing to explicitly urge Chairman Bob Goodlatte (R-VA6) to immediately bring H.R. 699 up for a vote in the Judiciary Committee. The Chairman, however, made it equally clear that he continued to have questions about whether agencies like the SEC should be exempted from a full warrant requirement and raised new constitutional questions about whether, if passed as now written, H.R. 699 could preclude Congress itself from being able to continue to subpoena documents without a warrant under its own investigatory authorities.

Where H.R. 699 (and its Senate companion, S. 356) goes from here — and more to the point when — is unclear. Strong further advocacy by librarians, in harness with our many coalition partners, may well be what it takes to “spring” HR. 699 from the Committee in which it’s been mired for years but from which, this week, it may just have begun to emerge. Stay tuned!

About Adam Eisgrau

Adam Eisgrau is a 30-year veteran of Washington legal practice, government service, public and private sector lobbying, and strategic communications and policy consulting. Adam first handled digital copyright matters for ALA from 1995 to 1999 and rejoined the Washington Office in September 2014 as managing director of the Office of Government Relations. His issue portfolio includes copyright, privacy and surveillance, cybersecurity, encryption and data security. Adam received a BA in American Studies from Dartmouth College and his JD from Harvard Law.

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