Judiciary chairman wants warrant exception in email privacy bill

Greg Nash

House Judiciary Chairman Bob Goodlatte (R-Va.) on Tuesday proposed tweaking an email privacy bill supported by more than 300 members to include an exemption that would force Internet companies to turn over customer data during an emergency.

Supporters of the Email Privacy Act see any changes as unnecessary, given that the bill has won support from a supermajority of the House in the past two congresses. However, reservations from federal agencies and law enforcement to the legislation have prevented the bill from moving.

{mosads}The legislation is aimed at closing a loophole in the 1986 Electronic Communications Privacy Act (ECPA) that lets the government use a subpoena, rather than a warrant, to force companies such as Google and other service providers to hand over customers’ electronic communications if they are more than 180 days old.

Goodlatte, however, said there is “nuance” within the law. In his opening statement at a hearing Tuesday, Goodlatte endorsed one change supported by law enforcement that would make it mandatory for Internet companies to turn over information in an emergency situation before a warrant has been obtained. 

Currently companies may voluntarily turn over such information in an emergency. 

“It is well-settled law that the government may conduct a search in the absence of a warrant in certain instances, including when the government determines that an emergency exists requiring the search or when the government obtains the consent of the owner of the information,” the chairman said. 

Outside advocates and companies like Google have opposed that exception, calling it unnecessary and warning it could bring with it privacy and security problems. 

Google noted that it already complies with about 80 percent of emergency requests. Some of those denials come because it does not posses the information asked for by law enforcement. The tech giant also pointed to a government watchdog that has found previous instances where the government abused its emergency powers. 

“It unfortunately appears to be the case that some law enforcement officials make emergency disclosure requests because it is easier than getting legal process, with the checks that come with it, even though legal process is available in a timely manner,” Google’s Richard Salgado said in prepared remarks. 

Agencies like the Securities and Exchange Commission (SEC) have also asked for carve-outs. The SEC and other civil enforcement agencies lack authority to obtain criminal warrants. 

They can already seek electronic records with a subpoena from the target of an investigation, but they also want the ability to compel service providers to hand over customer information if it is relevant to an investigation. 

Goodlatte was not as specific in his endorsement of the civil agency carve-out, but he noted, “Congress should also continue to ensure that civil investigative agencies are able to obtain electronic communication information for civil violations of federal law.”

In the new framework, he said a subpoena should first be served to the target of the investigation, hinting that a subpoena could later be served to an Internet company if the first process did not provide results.  

The SEC and other law enforcement agencies stopped using the ECPA subpoena loophole after a 2010 court ruling — United States v. Warshak — that found government demands for tech companies to turn over customer emails without a warrant is a violation of the Fourth Amendment.

“I think the court has decided and you are not happy with the court decision,” Rep. Jim Sensenbrenner (R-Wis.) told an SEC official Tuesday. “And what your testimony says is you’d like to expand something that has already been held unconstitutional.”

Tags Bob Goodlatte ECPA Electronic Communications Privacy Act Email Privacy Act Jim Sensenbrenner
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