Reps shun law enforcement, cheer 'slam-dunk' email legislation

Most House lawmakers have come to believe that email stored by your Internet service provider or cloud email service is as private as paper letters in your desk.

In a Dec. 1 hearing, law enforcement agencies made an unpopular case for exceptions as the House Judiciary Committee discussed legislation that would amend the Electronic Communications Privacy Act (ECPA) of 1986 to afford the same privacy protections to email correspondence that paper letters receive.

The Email Privacy Act would standardize legal treatment by for email messages by eliminating the legal distinction between emails stored on a user computer and emails stored remotely. The bill would require law enforcement agencies to get warrants instead of subpoenas to obtain remotely stored communications from ISPs.

Law enforcement representatives from the Securities and Exchange Commission, the National Association of Assistant U.S. Attorneys and the Tennessee Bureau of Investigation agreed that the 1986 law needed an update, but they stressed the importance of administrative subpoenas as a tool to recover suspects' email from ISPs.

However, most of the lawmakers at the hearing sided against law enforcement in favor of the technology companies and privacy advocates who support the bill.

Rep. Louie Gohmert (R-Texas) cited Edward Snowden's revelations of sweeping U.S. government surveillance as a reason to back a clean, broad defense of Americans' electronic Fourth Amendment rights.

"Yes, [Snowden] committed treason, but he also exposed lies by the last administration and this administration," Gohmert said.

Law enforcement officials might worry that while they were getting a warrant, a suspect would delete incriminating email messages. But Gohmert said that fear does not merit a legal notification exception because it could apply to every criminal and civil case, and the exception would come to overshadow the spirit of the rule.

And as Andrew Ceresney, director of the SEC's Enforcement Division, admitted, the SEC hasn't been using subpoenas to get email from ISPs since a federal appeals court ruled in 2010 that some ECPA provisions were unconstitutional.

The House bill would merely codify the status quo, many lawmakers said.

Rep. John Ratcliffe (R-Texas) said the SEC has been building a strong record of innovative enforcement actions despite not using subpoenas for email.

"I think this is a slam dunk for Congress to make a determination," said Rep. Jim Sensenbrenner (R-Wis.). Aside from "a few people who want to expand the dragnet," most citizens, lawmakers and companies like the proposed ECPA amendments.

H.R. 699, which was introduced by Rep. Kevin Yoder (R-Kan.), has more than 300 co-sponsors, and a sister bill is making its way through the Senate, with some pushback from the Obama administration.

"I don't buy the argument that 'we're in the Digital Age; you've got to give up some of your constitutional rights,'" said Rep. Ted Poe (R-Texas), who joined the lawmakers arguing that electronic communications should be afforded the same Fourth Amendment privacy protections as their paper-based counterparts.

"I want [to] get a vote on Mr. Yoder's bill," he added. "Three hundred and four members of Congress agreeing on something -- really?"

And Poe dismissed Ceresney's warnings that the legislation could hamper SEC investigations. "The way I see this legislation, it's to protect us from the SEC and the IRS and the [Environmental Protection Agency]," Poe said.