SEC defends email privacy practices

The Securities and Exchange Commission (SEC) on Tuesday defended its practice of obtaining emails older than 180 days without a warrant.

SEC Chairwoman Mary Jo White told the House Appropriations subcommittee on financial services that her agency protects people’s privacy when it uses subpoenas — rather than warrants, which have a higher burden of proof — to access emails.

Under the Electronic Privacy Communications Act, law enforcement officials do not need a warrant to access electronic communications that have been stored for more than six months.

Attempts to update that law — including from Senate Judiciary Committee Chairman Patrick LeahyPatrick Joseph LeahyMcCabe oversaw criminal probe into Sessions over testimony on Russian contacts: report Graham calls for Senate Judiciary hearing on McCabe firing McCabe firing roils Washington MORE (D-Vt.) and Reps. Kevin YoderKevin Wayne YoderProgressive group targets GOP moderates on immigration GOP cautious, Dems strident in reaction to new indictments GOP rep bringing widow of slain Indian immigrant to State of the Union MORE (R-Kan.), Tom GravesJohn (Tom) Thomas GravesHouse Oversight a gavel no one wants SEC paperless mandate a bad deal for rural, elderly investors Lobbying World MORE (R-Ga.) and Jared Polis (D-Colo.) — have been largely supported by law enforcement agencies but have faced backlash from civil agencies, like the SEC.

During Tuesday’s hearing, Yoder pushed White to explain her agency’s resistance. Yoder co-authored the Email Privacy Act, which would require a warrant for electronic communications and currently has 192 co-sponsors in the House.

Yoder asked why law enforcement agencies need a warrant to access physical documents but not electronic communications.

“Paper documents versus the file folders contained in our email accounts all seem to ... have Fourth Amendment protections,” he said.

As a civil agency, the SEC relies on subpoenas, not warrants, to obtain information for its investigations, White said.

White told Yoder that the SEC’s investigatory practices have built-in privacy protections.

When the SEC subpoenas a third party, such as an Internet or email provider, it is the agency’s practice “to give notice to the subscriber who then has the opportunity to contest that subpoena if they so desire,” she said.

White said that the agency understands the need to balance the needs of its investigations and privacy concerns. 

“The way that the SEC has [conducted investigations] satisfy those” concerns, she said.

Yoder pushed back on White’s responses, saying that members of Congress think “that these subpoenas being issued ... don’t give due process.”

“That is one of the chief concerns that has driven the interest in” updating electronic privacy law, he said, asking White to provide feedback on his legislation.

White responded that she thinks “there are any number of ways to [increase privacy protections] and we’re very open to talking about other ways as well,” she said.