A Majority of House Members Want to End Warrantless Email Spying. Why Hasn’t Their Bill Moved?

House Judiciary Committee Chairman Bob Goodlatte is wary of hamstringing government investigations.

BERLIN, GERMANY - AUGUST 31: A visitor tries out an HP Spectre XT laptop computer featuring an Intel Ultrabook processor at the Internationale Funkausstellung (IFA) 2012 consumer electronics trade fair on August 31, 2012 in Berlin, Germany. IFA 2012 is open to the public from today until September 5.
National Journal
Brendan Sasso
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Brendan Sasso
Dec. 1, 2015, 4:48 p.m.

It’s among the most pop­u­lar bills in Con­gress, but it’s still stuck in com­mit­tee.

More than 300 House mem­bers—a ma­jor­ity of the body—have signed on as co­spon­sors to the Email Pri­vacy Act, which would re­quire po­lice to ob­tain a war­rant be­fore ac­cess­ing emails, Face­book mes­sages, and oth­er private on­line con­tent. It has vo­cal sup­port from con­ser­vat­ives such as Reps. Kev­in Yo­der and Ted Poe, as well as lib­er­als such as Reps. Jared Pol­is and Sheila Jack­son Lee. Get­ting it passed is one of the top policy pri­or­it­ies for In­ter­net gi­ants such as Google and Ya­hoo, and it’s even en­dorsed by an­ti­tax cru­sader Grover Nor­quist.

But after more than three years of de­bate, the bill still hasn’t made it to the House floor for a vote. And on Tues­day, a hear­ing of the House Ju­di­ciary Com­mit­tee made it clear why: The pan­el’s chair­man, Rep. Bob Good­latte, isn’t back­ing the bill yet, and his com­mit­tee perch gives him enough power to keep it from go­ing through.

Good­latte said Tues­day he sup­ports the “core” of the Email Pri­vacy Act, but he also de­man­ded changes to en­sure the bill doesn’t hamper law en­force­ment. A Good­latte aide said the hear­ing “high­lighted some is­sues that need to be ad­dressed” and de­clined to say when the bill might ad­vance to a vote in the com­mit­tee.

Good­latte’s res­ist­ance is prov­ing to be a ma­jor stum­bling block, even though the bill already has more co­spon­sors than it would need votes to pass.

Un­der the Elec­tron­ic Com­mu­nic­a­tions Pri­vacy Act, the gov­ern­ment can seize emails that have been opened or that are more than 180 days old without ju­di­cial ap­prov­al. When law­makers passed ECPA in 1986, they as­sumed that if a per­son hadn’t down­loaded and de­leted an email with­in six months, it could be con­sidered aban­doned and wouldn’t re­quire strict pri­vacy pro­tec­tions. While one fed­er­al ap­peals court ruled in 2010 that the Con­sti­tu­tion re­quires po­lice to ob­tain a war­rant to ac­cess emails, oth­er courts have con­cluded that people lose pri­vacy pro­tec­tions when they share in­form­a­tion with third parties such as email pro­viders.

“When cur­rent law af­fords more pro­tec­tions for a let­ter in a fil­ing cab­in­et than an email on a serv­er, it’s clear our policies are out­dated,” Rep. Su­z­an Del­Bene, a Wash­ing­ton Demo­crat and co­spon­sor of the bill, said at Tues­day’s hear­ing.

“We are not well-served by a law whose ap­plic­a­tion is un­pre­dict­able, and that the courts have had great dif­fi­culty in­ter­pret­ing,” said Rep. John Con­yers, the top Demo­crat on the com­mit­tee. “Be­cause of the rap­id pace of tech­no­lo­gic­al change, this situ­ation will only get worse if we do not act.”

But Good­latte ar­gued that Con­gress should pro­tect the “le­git­im­ate needs of law en­force­ment” by amend­ing the Email Pri­vacy Act to in­clude war­rant ex­emp­tions for emer­gen­cies and oth­er cir­cum­stances. “One of the goals of this le­gis­la­tion is to treat searches in the vir­tu­al world and the phys­ic­al world equally, so it makes sense that the ex­cep­tions to the war­rant re­quire­ment and the pro­ced­ures gov­ern­ing ser­vice of war­rants should also be har­mon­ized,” he ar­gued.

The Ju­di­ciary Com­mit­tee chair­man also warned that there are “ser­i­ous pub­lic safety” con­cerns with a pro­vi­sion that would re­quire po­lice to serve the crim­in­al sus­pect with the war­rant in­stead of just the sus­pect’s email pro­vider. And he ar­gued that the bill could un­der­mine in­vest­ig­a­tions by Con­gress and civil agen­cies, which don’t have ac­cess to crim­in­al war­rants.

That con­cern was echoed by An­drew Ceres­ney, the head of en­force­ment at the Se­cur­it­ies and Ex­change Com­mis­sion. The Email Pri­vacy Act, Ceres­ney test­i­fied, “poses sig­ni­fic­ant risks to the Amer­ic­an pub­lic by im­ped­ing the abil­ity of the SEC and oth­er civil law en­force­ment agen­cies to in­vest­ig­ate and un­cov­er fin­an­cial fraud and oth­er un­law­ful con­duct.”

But Ceres­ney ac­know­ledged that the SEC hasn’t tried to sub­poena email pro­viders since the ap­peals court gran­ted con­sti­tu­tion­al pro­tec­tions to re­motely stored con­tent in 2010. The bill’s sup­port­ers also ar­gued that civil agen­cies such as the SEC should just con­tin­ue for­cing the tar­gets of their in­vest­ig­a­tions to turn over re­cords in­stead of go­ing to email pro­viders like Google.

Point­ing to the con­tro­versy over the In­tern­al Rev­en­ue Ser­vice tar­get­ing con­ser­vat­ive or­gan­iz­a­tions, Chris Ca­labrese, the vice pres­id­ent of policy for the Cen­ter for Demo­cracy and Tech­no­logy, a pri­vacy ad­vo­cacy group, urged Con­gress not to al­low civil agen­cies to use the bill as “a tool to gain new powers.”

The bill, which would not af­fect for­eign in­tel­li­gence op­er­a­tions, had been largely over­shad­owed by the leaks by Ed­ward Snowden and the de­bate over Na­tion­al Se­cur­ity Agency sur­veil­lance.

Sens. Patrick Leahy and Mike Lee in­tro­duced coun­ter­part le­gis­la­tion to the Email Pri­vacy Act in the Sen­ate. The Sen­ate Ju­di­ciary Com­mit­tee held a hear­ing in Septem­ber, but like Good­latte, Chair­man Chuck Grass­ley wor­ried the le­gis­la­tion could hamper law en­force­ment in­vest­ig­a­tions. The Sen­ate has not sched­uled a com­mit­tee vote on the bill.

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