[Congressional Record Volume 162, Number 65 (Wednesday, April 27, 2016)]
[House]
[Pages H2022-H2028]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
EMAIL PRIVACY ACT
Mr. GOODLATTE. Mr. Speaker, I move that the House suspend the rules
and pass the bill (H.R. 699) to amend title 18, United States Code, to
update the privacy protections for electronic communications
information that is stored by third-party service providers in order to
protect consumer privacy interests while meeting law enforcement needs,
and for other purposes, as amended.
The Clerk read the title of the bill.
The text of the bill is as follows:
H.R. 699
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Email Privacy Act''.
SEC. 2. VOLUNTARY DISCLOSURE CORRECTIONS.
(a) In General.--Section 2702 of title 18, United States
Code, is amended--
(1) in subsection (a)--
(A) in paragraph (1)--
(i) by striking ``divulge'' and inserting ``disclose'';
(ii) by striking ``while in electronic storage by that
service'' and inserting ``that is in electronic storage with
or otherwise stored, held, or maintained by that service'';
(B) in paragraph (2)--
(i) by striking ``to the public'';
(ii) by striking ``divulge'' and inserting ``disclose'';
and
(iii) by striking ``which is carried or maintained on that
service'' and inserting ``that is stored, held, or maintained
by that service''; and
(C) in paragraph (3)--
(i) by striking ``divulge'' and inserting ``disclose''; and
(ii) by striking ``a provider of'' and inserting ``a person
or entity providing''
(2) in subsection (b)--
(A) in the matter preceding paragraph (1), by inserting
``wire or electronic'' before ``communication'';
(B) by amending paragraph (1) to read as follows:
``(1) to an originator, addressee, or intended recipient of
such communication, to the subscriber or customer on whose
behalf the provider stores, holds, or maintains such
communication, or to an agent of such addressee, intended
recipient, subscriber, or customer;''; and
(C) by amending paragraph (3) to read as follows:
``(3) with the lawful consent of the originator, addressee,
or intended recipient of such communication, or of the
subscriber or customer on whose behalf the provider stores,
holds, or maintains such communication;'';
(3) in subsection (c) by inserting ``wire or electronic''
before ``communications'';
(4) in each of subsections (b) and (c), by striking
``divulge'' and inserting ``disclose''; and
(5) in subsection (c), by amending paragraph (2) to read as
follows:
``(2) with the lawful consent of the subscriber or
customer;''.
SEC. 3. AMENDMENTS TO REQUIRED DISCLOSURE SECTION.
Section 2703 of title 18, United States Code, is amended--
(1) by striking subsections (a) through (c) and inserting
the following:
``(a) Contents of Wire or Electronic Communications in
Electronic Storage.--Except as provided in subsections (i)
and (j), a governmental entity may require the disclosure by
a provider of electronic communication service of the
contents of a wire or electronic communication that is in
electronic storage with or otherwise stored, held, or
maintained by that service only if the governmental entity
obtains a warrant issued using the procedures described in
the Federal Rules of Criminal Procedure (or, in the case of a
State court, issued using State warrant procedures) that--
``(1) is issued by a court of competent jurisdiction; and
``(2) may indicate the date by which the provider must make
the disclosure to the governmental entity.
In the absence of a date on the warrant indicating the date
by which the provider must make disclosure to the
governmental entity, the provider shall promptly respond to
the warrant.
``(b) Contents of Wire or Electronic Communications in a
Remote Computing Service.--
``(1) In general.--Except as provided in subsections (i)
and (j), a governmental entity may require the disclosure by
a provider of remote computing service of the contents of a
wire or electronic communication that is stored, held, or
maintained by that service only if the governmental entity
obtains a warrant issued using the procedures described in
the Federal Rules of Criminal Procedure (or, in the case of a
State court, issued using State warrant procedures) that--
``(A) is issued by a court of competent jurisdiction; and
``(B) may indicate the date by which the provider must make
the disclosure to the governmental entity.
In the absence of a date on the warrant indicating the date
by which the provider must make disclosure to the
governmental entity, the provider shall promptly respond to
the warrant.
``(2) Applicability.--Paragraph (1) is applicable with
respect to any wire or electronic communication that is
stored, held, or maintained by the provider--
``(A) on behalf of, and received by means of electronic
transmission from (or created by means of computer processing
of communication received by means of electronic transmission
from), a subscriber or customer of such remote computing
service; and
``(B) solely for the purpose of providing storage or
computer processing services to such subscriber or customer,
if the provider is not authorized to access the contents of
any such communications for purposes of providing any
services other than storage or computer processing.
``(c) Records Concerning Electronic Communication Service
or Remote Computing Service.--
``(1) In general.--Except as provided in subsections (i)
and (j), a governmental entity may require the disclosure by
a provider of electronic communication service or remote
computing service of a record or other information pertaining
to a subscriber to or customer of such service (not including
the contents of wire or electronic communications), only--
``(A) if a governmental entity obtains a warrant issued
using the procedures described in the Federal Rules of
Criminal Procedure (or, in the case of a State court, issued
using State warrant procedures) that--
``(i) is issued by a court of competent jurisdiction
directing the disclosure; and
``(ii) may indicate the date by which the provider must
make the disclosure to the governmental entity;
``(B) if a governmental entity obtains a court order
directing the disclosure under subsection (d);
``(C) with the lawful consent of the subscriber or
customer; or
[[Page H2023]]
``(D) as otherwise authorized in paragraph (2).
``(2) Subscriber or customer information.--A provider of
electronic communication service or remote computing service
shall, in response to an administrative subpoena authorized
by Federal or State statute, a grand jury, trial, or civil
discovery subpoena, or any means available under paragraph
(1), disclose to a governmental entity the--
``(A) name;
``(B) address;
``(C) local and long distance telephone connection records,
or records of session times and durations;
``(D) length of service (including start date) and types of
service used;
``(E) telephone or instrument number or other subscriber or
customer number or identity, including any temporarily
assigned network address; and
``(F) means and source of payment for such service
(including any credit card or bank account number);
of a subscriber or customer of such service.
``(3) Notice not required.--A governmental entity that
receives records or information under this subsection is not
required to provide notice to a subscriber or customer.'';
(2) in subsection (d)--
(A) by striking ``(b) or'';
(B) by striking ``the contents of a wire or electronic
communication, or'';
(C) by striking ``sought,'' and inserting ``sought''; and
(D) by striking ``section'' and inserting ``subsection'';
and
(3) by adding at the end the following:
``(h) Notice.--Except as provided in section 2705, a
provider of electronic communication service or remote
computing service may notify a subscriber or customer of a
receipt of a warrant, court order, subpoena, or request under
subsection (a), (b), (c), or (d) of this section.
``(i) Rule of Construction Related to Legal Process.--
Nothing in this section or in section 2702 shall limit the
authority of a governmental entity to use an administrative
subpoena authorized by Federal or State statute, a grand
jury, trial, or civil discovery subpoena, or a warrant issued
using the procedures described in the Federal Rules of
Criminal Procedure (or, in the case of a State court, issued
using State warrant procedures) by a court of competent
jurisdiction to--
``(1) require an originator, addressee, or intended
recipient of a wire or electronic communication to disclose a
wire or electronic communication (including the contents of
that communication) to the governmental entity;
``(2) require a person or entity that provides an
electronic communication service to the officers, directors,
employees, or agents of the person or entity (for the purpose
of carrying out their duties) to disclose a wire or
electronic communication (including the contents of that
communication) to or from the person or entity itself or to
or from an officer, director, employee, or agent of the
entity to a governmental entity, if the wire or electronic
communication is stored, held, or maintained on an electronic
communications system owned, operated, or controlled by the
person or entity; or
``(3) require a person or entity that provides a remote
computing service or electronic communication service to
disclose a wire or electronic communication (including the
contents of that communication) that advertises or promotes a
product or service and that has been made readily accessible
to the general public.
``(j) Rule of Construction Related to Congressional
Subpoenas.--Nothing in this section or in section 2702 shall
limit the power of inquiry vested in the Congress by Article
I of the Constitution of the United States, including the
authority to compel the production of a wire or electronic
communication (including the contents of a wire or electronic
communication) that is stored, held, or maintained by a
person or entity that provides remote computing service or
electronic communication service.''.
SEC. 4. DELAYED NOTICE.
Section 2705 of title 18, United States Code, is amended to
read as follows:
``Sec. 2705. Delayed notice
``(a) In General.--A governmental entity acting under
section 2703 may apply to a court for an order directing a
provider of electronic communication service or remote
computing service to which a warrant, order, subpoena, or
other directive under section 2703 is directed not to notify
any other person of the existence of the warrant, order,
subpoena, or other directive.
``(b) Determination.--A court shall grant a request for an
order made under subsection (a) for delayed notification of
up to 180 days if the court determines that there is reason
to believe that notification of the existence of the warrant,
order, subpoena, or other directive will likely result in--
``(1) endangering the life or physical safety of an
individual;
``(2) flight from prosecution;
``(3) destruction of or tampering with evidence;
``(4) intimidation of potential witnesses; or
``(5) otherwise seriously jeopardizing an investigation or
unduly delaying a trial.
``(c) Extension.--Upon request by a governmental entity, a
court may grant one or more extensions, for periods of up to
180 days each, of an order granted in accordance with
subsection (b).''.
SEC. 5. RULE OF CONSTRUCTION.
Nothing in this Act or an amendment made by this Act shall
be construed to preclude the acquisition by the United States
Government of--
(1) the contents of a wire or electronic communication
pursuant to other lawful authorities, including the
authorities under chapter 119 of title 18 (commonly known as
the ``Wiretap Act''), the Foreign Intelligence Surveillance
Act of 1978 (50 U.S.C. 1801 et seq.), or any other provision
of Federal law not specifically amended by this Act; or
(2) records or other information relating to a subscriber
or customer of any electronic communication service or remote
computing service (not including the content of such
communications) pursuant to the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), chapter
119 of title 18 (commonly known as the ``Wiretap Act''), or
any other provision of Federal law not specifically amended
by this Act.
The SPEAKER pro tempore. Pursuant to the rule, the gentleman from
Virginia (Mr. Goodlatte) and the gentleman from Michigan (Mr. Conyers)
each will control 20 minutes.
The Chair recognizes the gentleman from Virginia.
General Leave
Mr. GOODLATTE. Mr. Speaker, I ask unanimous consent that all Members
may have 5 legislative days in which to revise and extend their remarks
and include extraneous materials on H.R. 699, currently under
consideration.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Virginia?
There was no objection.
Mr. GOODLATTE. Mr. Speaker, I yield myself such time as I may
consume.
Today is an historic day. Today, the House of Representatives will be
the first Chamber in Congress to approve legislation that has been
pending before the House and Senate for several years to reform and
modernize the Electronic Communications Privacy Act, or ECPA. Reforming
this outdated law has been a priority for me as chairman of the
Judiciary Committee. I have worked with Members of Congress, advocacy
groups, and law enforcement agencies for years on many complicated
nuances involved in updating this law.
Two weeks ago, the House Judiciary Committee unanimously reported a
revised version of H.R. 699, the Email Privacy Act. The resulting bill
is a carefully negotiated agreement to update the procedures governing
government access to stored communications content and records.
Thirty years ago, when personal computing was still in its infancy
and few of us had ever heard of something called the World Wide Web,
Congress enacted ECPA to establish procedures that strike ``a fair
balance between the privacy expectations of American citizens and the
legitimate needs of law enforcement agencies.''
In 1986, mail was sent through the U.S. Postal Service, a search
engine was called a library, tweets were the sounds made by birds in
the trees, and clouds were found only in the sky. In 1986, computer
storage was finite and expensive. It was unheard of that a commercial
product would allow users to send and receive electronic communications
around the globe for free and store those communications for years with
a third-party provider.
So much has changed in the last three decades. The technology
explosion over the last three decades has placed a great deal of
information on the Internet, in our emails, and on the cloud. Today,
commercial providers, businesses, schools, and governments of all
shapes and sizes provide email and cloud computing services to
customers, students, and employees.
The Email Privacy Act establishes, for the first time in Federal
statute, a uniform warrant requirement for stored communication content
in criminal investigations, regardless of the type of service provider,
the age of an email, or whether the email has been opened.
The bill preserves the authority for law enforcement agents to serve
the warrant on the provider because, as with any other third-party
custodian, the information sought is stored with them. However, the
bill acknowledges that providers may give notice to their customers
when in receipt of a warrant, court order, or subpoena, unless the
provider is court-ordered to delay such notification.
The bill continues current practice that delineates which remote
computing service providers, or cloud providers, are subject to the
warrant requirement for content in a criminal investigation.
ECPA has traditionally imposed heightened legal process and
procedures to obtain information for which the customer has a
reasonable expectation of privacy, namely, emails, texts,
[[Page H2024]]
photos, videos, and documents stored in the cloud. H.R. 699 preserves
this treatment by maintaining in the statute limiting language
regarding remote computing services.
Contrary to practice 30 years ago, today, vast amounts of private,
sensitive information are transmitted and stored electronically. But
this information may also contain evidence of a crime, and law
enforcement agencies are increasingly dependent on stored
communications content and records in their investigations.
To facilitate timely disclosure of evidence to law enforcement, the
bill authorizes a court to require a date for return of service of the
warrant. In the absence of such a requirement, H.R. 699 requires email
and cloud providers to promptly respond to warrants for communications
content.
Current law makes no distinction between content disclosed to the
public, like an advertisement on a Web site, versus content disclosed
only to one or a handful of persons, like an email or a text message.
The result is that law enforcement could be required to obtain a
warrant even for publicly disclosed content. The bill clarifies that
commercial public content can be obtained with process other than a
warrant.
Lastly, H.R. 699 clarifies that nothing in the law limits Congress'
authority to compel a third-party provider to disclose content in
furtherance of its investigative and oversight responsibilities.
Thirty years ago, the extent to which people communicated
electronically was much more limited. Today, however, the ubiquity of
electronic communications requires Congress to ensure that legitimate
expectations of privacy are protected, while respecting the needs of
law enforcement.
I am confident that this bill strikes the necessary balance and does
so in a way that continues to promote the development and use of new
technologies and services that reflect how people communicate with one
another today and into the future.
I would like to thank Congressman Yoder and Congressman Polis for
introducing the underlying legislation and for working with the
committee on improvements to the bill.
With this historic vote today, Congress will approve legislation that
embodies the principles of the Fourth Amendment and reaffirms our
commitment to protecting the privacy interests of the American people
without unduly sacrificing public safety.
I urge my colleagues to support this bipartisan legislation.
I reserve the balance of my time.
Mr. CONYERS. Mr. Speaker, I yield myself such time as I may consume.
In 2014, in a unanimous ruling delivered by Chief Justice Roberts,
the Supreme Court concluded that the police may not search a cell phone
without first demonstrating probable cause. Citing an obvious Fourth
Amendment interest in the vast amount of data we store on our personal
devices, the Court wrote: ``The fact that technology now allows an
individual to carry such information in his hand does not make the
information any less worthy of the protection for which the Founders
fought. Our answer to the question of what police must do before
searching a cell phone seized incident to an arrest is accordingly
simple--get a warrant.''
With that decision, the Court took a bold step toward reconciling the
Fourth Amendment with the advent of modern communications technology.
Today, the House takes a similar step to reconcile our interests in
privacy and due process with the realities of modern computing.
H.R. 699, the Email Privacy Act, recognizes that the content of our
communications, although often stored in digital format, remains worthy
of Fourth Amendment protection. And to the investigators and government
agents who seek access to our email, our advice is accordingly simple:
Get a warrant. It is an idea whose time has long since come. This bill
will allow us to move to a clear, uniform standard for law enforcement
agencies to access the content of our communications, namely, a warrant
based on probable cause.
H.R. 699 also codifies the right of the providers to give notice of
this intrusion to their customers, except in certain exigent
circumstances that must also be validated by the court.
{time} 1415
We should note the absence of a special carve-out from the warrant
requirement for the civil agencies, like the Securities and Exchange
Commission and the Internal Revenue Service. In the House Judiciary
Committee, we reached quick consensus that a civil carve-out of any
kind is unworkable, unconstitutional, or both. I would have preferred
to have kept the notice provisions of the original bill, which are
absent from the version we reported from committee.
In the digital world, no amount of due diligence necessarily tells us
that the government has accessed our electronic communications. The
government should have an obligation to provide us with some form of
notice when intruding on a record of our most private conversations;
but I understand that not everyone shares this view, and I am willing
to compromise, for now, in order to advance the important reforms that
we will adopt today.
I am proud of the work we have done. This legislation is several
years in the making, and it should not be delayed any further. I
compliment our colleague Mr. Polis. Accordingly, I urge my colleagues
to support H.R. 699, the Email Privacy Act.
I reserve the balance of my time.
Mr. GOODLATTE. Mr. Speaker, I yield 5 minutes to the gentleman from
Kansas (Mr. Yoder), the chief sponsor of the legislation.
Mr. YODER. I thank the chairman.
Mr. Speaker, today is a great day for the Constitution. It is a great
day for the spirit of bipartisanship in this Chamber. It is a great day
for Americans everywhere who use modern technology, such as emails and
text messages and cell phones, to communicate with one another.
This day has been a long time in the making, and I want to thank the
chairman and his staff, Ranking Member Conyers, my colleague Mr. Polis,
and everyone who has worked on this legislation. This is the most
cosponsored bill in the entire United States House--the most popular
bill--because it is a commonsense piece of legislation that affects
every American and will clear up a long-time hole in the law that has
allowed the government to intrude on Americans' privacy.
You have to go back to 1986 when this law was passed: Halley's Comet
was passing by Earth; ``Top Gun'' was coming out as a new movie;
Cabbage Patch dolls were flying off the shelves. It was a good time in
America. It was also the time in which Congress last wrote the laws
that updated the Electronic Communications Privacy Act. At that point,
there were only 10 million Americans who even had email accounts.
Today, there is an estimated 232 million Americans who have email
accounts. It wasn't until 6 years later that someone sent the first
text message in 1992. Yet, now, we expect 1 billion text messages to be
sent every single year.
The current law, which is the law that was written in 1986, allows an
abuse of our constitutional rights by treating our digital information
as if it is not private information--as if it can be searched and
seized by the government without a warrant, without probable cause,
without due process. The theory in 1986 was, if you left your email on
a server, once it was left there, it was considered abandoned. It was
like trash that was left out on the street corner, which didn't have an
expectation of privacy anymore. We know the ways that Americans
communicate today is in a way in which they expect that those
transmissions are private, and they expect that the government will
honor that and not search those emails or capture them for other
purposes. The Fourth Amendment is being violated.
Today, we restore the Fourth Amendment by treating digital
information just like paper information, and we stand strong on the
notion that Americans do have an expectation of privacy in their email
accounts. I would think, if I and my colleagues would each ask our
constituents if they expect that their email conversations are private,
they would know that they are, and they would expect that they are. As
we are debating this bill, Americans are sending emails and text
messages back and forth, and they expect that their government is not
reviewing those.
What we do in this legislation is require a warrant. We say the
government must have probable cause. They must go to a judge whether it
is at the
[[Page H2025]]
Federal level, the State level, or the local level. To review those
pieces of digital information that are stored either in a drop box or
on the iCloud--or just a text message that is sent back and forth--you
have to have a warrant, and in a civil matter, you have to have a
subpoena, and that subpoena is served on the individual.
We have documents on our desks at home. The police can't kick in your
door and go read those documents unless they have a warrant backed up
on probable cause. We have a digital set of documents that goes around
with us wherever we go. There is a file cabinet with us. When we store
things, we are doing so not because we are abandoning it. We are
storing it because we are wanting to protect it, and we are wanting to
ensure that we can keep it. We don't want to lose our Fourth Amendment
protections because of that. This legislation would require that a
warrant or a civil subpoena exist in order to read that information so
that due process occurs.
This is a great unifier. Quite often on the House floor, we are
divided--Republicans and Democrats--and we are not able to find
resolution on some of the biggest challenges that face us; but the
Fourth Amendment in the Constitution has to be preserved. I am
heartened by the fact that my colleague Mr. Polis and groups on the
left and groups on the right and groups in the center and that America
has come together on this legislation to say we are going to fix this,
and we are going to ensure that this Congress modernizes its laws and
that it does so in a bipartisan fashion so that we can put this bill on
the President's desk and he will sign it into law. As we continue to
advance, we must remember to advance the laws that this country
utilizes, and as Americans communicate in different ways, we have to
modernize the way the laws treat that communication.
I am proud of the work we are doing in the House today. I thank the
chairman and his team. I thank Ranking Member Conyers and my colleagues
on both sides of the aisle. This is a great day for America, a great
day for the Constitution, and a great day for each and every one of us
who uses email to correspond to know that the Fourth Amendment
continues to protect us and to know that the Internet is not immune
from the protections of the Constitution.
Mr. CONYERS. Mr. Speaker, I yield 3 minutes to the gentleman from
Colorado (Mr. Polis), one of the authors of the measure before us.
Mr. POLIS. Mr. Speaker, the passage of the Email Privacy Act is an
enormous victory. It is a victory for all Americans who believe in the
right to privacy, in the Fourth Amendment, and in due process.
The Email Privacy Act mandates, for the first time, that Americans
have the same legal protection for their emails as they do for papers,
letters, faxes, and other old communications. The bill protects those
of us--myself included and many Members of this body--who have email
accounts in the cloud. Maybe it is Google mail or Yahoo Mail or AOL or
other email accounts on their hard drives. It makes sure that the
government doesn't have the right, without a warrant, to search emails
that are older than 180 days.
This bill is also a victory for bipartisanship. When I introduced the
bill, along with my colleague Mr. Yoder, in the winter of 2015, we knew
it would be popular. Yet, as this bill sits before us today, ready for
passage, I am very proud to say it has garnered 314 cosponsors, and it
stands as the single most popular bill in this session of the House of
Representatives. I am excited that it is scheduled for a floor vote.
When Congress passed the Electronic Communications Privacy Act in
1986, electronic communications were different than they are today.
They didn't really exist as such. A few professors were using a
predecessor for the Internet. It was not a mass form of communication.
Today, with 24/7 accessibility with mobile devices and laptops, over
205 billion emails are sent every day, according to some estimates,
including many that contain our private communications for millions of
Americans who deserve the same right to privacy as documents in a file
cabinet.
With the passage of the Email Privacy Act, Congress will ensure that
your emails that are older than 180 days are subject to the same
protection under the Fourth Amendment. You often hear Members on both
sides of the aisle talk about commonsense bills. When you read our bill
and when you look at the immense support, there is nothing more common
sense than the Email Privacy Act.
I urge my colleagues to vote ``yes'' and pass the bill. I urge the
Senate to take it up and act. There is the unanimous support from the
House Judiciary Committee and, as of today--hopefully soon--
overwhelming support on the floor of the House. This bill should be
passed. It should be brought to the desk of the President of the United
States. We should finally bring our email privacy laws into the 21st
century.
Mr. GOODLATTE. Mr. Speaker, I yield 3 minutes to the gentleman from
Texas (Mr. Poe), a member of the Judiciary Committee.
Mr. POE of Texas. I thank the chairman for bringing this bill up and
for his work on it in a bipartisan way.
I especially want to thank Congressman Yoder for pushing this
legislation that has overwhelming support in the House of
Representatives.
Mr. Speaker, the Electronic Communications Privacy Act was passed in
1986--30 years ago. It was an eternity. Understand that IBM invented
and put on the market its first laptop in 1986. A lot has changed since
that day 30 years ago. As the chairman mentioned, the cloud was where
rain came from, or sometimes we see it here in Washington, D.C.--the
cloud. No one even knew what that was. The Electronic Communications
Privacy Act needs to be fixed because it does not protect the right of
privacy of Americans.
If something is stored in the cloud that is over 180 days old, then
it is open season for government to seize all of that information. All
governments--local or State or Federal--can go in and get those emails,
texts, photographs, documents that you are storing. Up to 180 days, it
is protected by the Constitution. Interesting--180 days of
constitutional rights--but on the 181st day, you have no right of
privacy. That is absurd. This bill fixes that former legislation.
I used to be a judge in Texas for 22 years, and I had peace officers
all the time come to see me who wanted a warrant. They followed the
Fourth Amendment and described the place to be searched. They would go
in with that warrant, after stating probable cause, and they were
allowed to seize whatever they could seize under the warrant. The
Fourth Amendment ought to apply today. It ought to apply in the
electronic age. It ought to apply to emails that are stored in the
cloud or to anything else that is stored in the cloud. If the police
officers have to have a warrant to go into your house and take
documents you store in your desk or wherever, then they have to have a
warrant if you store documents in the cloud. That is what this
legislation does, and it makes sense that we protect the constitutional
right.
The government cannot tap our phones without a warrant, it can't read
hard mail without a warrant, and it can't enter our homes without a
warrant because of the Fourth Amendment. We are unique among all
peoples because we have in our Constitution the Fourth Amendment that
protects Americans--I think better than any other population anywhere--
of their rights.
Speaking of rights, the government doesn't have rights. People have
rights, and the Bill of Rights protects the citizens of the United
States. Government has authority--it has power--and if you read the
Bill of Rights, the 10 Amendments especially, it is to limit government
power and authority against us, the citizens. So, of course, the Fourth
Amendment should apply to the Federal Government in this area.
Unfortunately, we have seen in our own government abuses of the
government in the area, especially of snooping and spying on Americans,
with the NSA and its story that we are all familiar with. We have to
control government, and it is our obligation, the House of
Representatives, to protect the Constitution--the Bill of Rights
especially--from government intrusion.
I support this legislation. It is a good piece of legislation. I
thank the chairman and the ranking member and Ms. Lofgren for her
support of this legislation that we have been working on for a long
time. Let Congress speak out
[[Page H2026]]
and support the right of privacy for all Americans and keep the
government out of the snooping business.
And that is just the way it is.
Mr. CONYERS. Mr. Speaker, I yield 3 minutes to the gentleman from New
York (Mr. Nadler), a senior member of the House Judiciary Committee.
Mr. NADLER. I thank the chairman.
Mr. Speaker, I rise to support the Email Privacy Act.
It has long been evident that we need to update the laws impacting
electronic communications and privacy. I am pleased that, today, the
House will take a major step forward by considering and approving the
Email Privacy Act. Its passage is long overdue.
In 2009 and 2010, when I was the chair of the House Judiciary
Subcommittee on the Constitution, Civil Rights and Civil Liberties, we
held multiple hearings on ECPA, or electronic communication and privacy
laws, and began to seriously consider reforms to our Nation's
electronic communication and privacy laws. During the 112th Congress,
Representative Conyers and I introduced the Electronic Communications
Privacy Act Modernization Act of 2012, which would have required law
enforcement to obtain a warrant based on probable cause before
searching email. That approach, now embodied in the Yoder-Polis Email
Privacy Act, is what we are here to consider today.
The Email Privacy Act requires the government to obtain a warrant in
order to access people's electronic communications from a third-party
provider, protecting Americans' privacy rights while still enabling law
enforcement to do its job.
{time} 1430
This is consistent with a stark American practice going back to the
Fourth Amendment. Current law is inconsistent and unclear regarding the
standards for government access to the content of communications, and a
single email is potentially subject to multiple different legal
standards.
Clarifying the laws will help industry stakeholders, who currently
struggle to apply the existing, outdated categories of information to
their products and services, and it will provide a clear standard for
law enforcement.
In an era where government access to people's private information
held by third-party providers has become far too easy, Congress is
finally taking steps to update our laws to reflect our new
understanding of what it means for ``people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and
seizures,'' in the words of the Fourth Amendment.
This bill is not perfect, and clearly there is more to be done. In
particular, we must ensure that we keep working to require a probable
cause warrant for location information.
I am pleased that Chairman Goodlatte has announced that he plans to
hold hearings on location information, and I look forward to those
hearings and to subsequent legislation.
I am proud to be an original cosponsor of this bill, and I applaud
the House for considering this landmark legislation today.
I urge my colleagues to support the passage of this bill to ensure
that our laws strike the right balance between the interests and needs
of law enforcement and the privacy rights of the American people.
Mr. GOODLATTE. Mr. Speaker, I yield 2 minutes to the gentleman from
South Carolina (Mr. Sanford).
Mr. SANFORD. Mr. Speaker, I want to applaud my colleagues from Kansas
and from Colorado for their work in crafting this bill. I think it is
awfully important.
I think it is what people expect. When they think about government,
they want a government that works for them. Part of having a government
that works for them means actually updating laws as technology has
changed.
So I think that, at the core, this is about keeping current with the
rate of change in the world of technology.
It is amazing to me--I pulled the numbers--that there are roughly 205
billion emails sent every day around the world. If you presuppose that
America's economy is about 20 percent of that world pie, that means
around 40 million or more emails are sent across this country every
single day.
In contrast is the U.S. Postal Service. There are about 600 million
letters that go across this country every day, which is to say,
mathematically, you are saying that about 1.5 percent of the
communication flow, either via mail or electronic means, are sent by
the Postal Service.
The other, in essence, 99 percent of the communications are sent via
email, which is to say we have a real problem with a law that was
created in the 1980s that doesn't take into account the way the world
has changed.
So I applaud the crafters of this bill for what they have done in
recognizing technology change. I applaud them for the way that they
stayed true to the Fourth Amendment.
Our Founding Fathers were so deliberate in recognizing the notion
that you didn't want to have British soldiers coming into a house and
rumbling around until they finally found something to charge you with
and then moving forward.
The Fourth Amendment is about protecting individual liberty.
Jefferson said: ``The natural progress of things is for the government
to gain ground and for liberty to yield.''
Fundamentally, what this bill is about is pushing back in the way
that the government has now encroached on that space of individual
liberty.
Finally, I would say simply this: This is about recognizing how true
history is on the importance of protecting liberty.
The SPEAKER pro tempore (Mr. Costello of Pennsylvania). The time of
the gentleman has expired.
Mr. GOODLATTE. Mr. Speaker, I yield an additional 1 minute to the
gentleman from South Carolina.
Mr. SANFORD. Mr. Speaker, Edward Gibbon wrote a book back in 1776
about the fall of the Romans. In it, he harkens back to the fall of
Greece and the Athenians.
He said, at the end of the day, in the end, more than they wanted
freedom, they wanted security. They wanted a comfortable life, and they
lost it all--security, comfort, and freedom--when the Athenians no
longer wanted to give to society, but to receive. And he goes on with a
long quote from there.
He talks about the fundamental tension that exists in any developed
society between freedom and security. We have moved too far in the
opposite direction as it relates to email. This bill brings us back
toward the center.
I again applaud Mr. Yoder and Mr. Polis for what they have done. I
also applaud Chairman Goodlatte for what he has done on this front.
Mr. CONYERS. Mr. Speaker, I yield 2 minutes to the gentlewoman from
Washington (Ms. DelBene), a very effective member on the Judiciary
Committee.
Ms. DelBENE. Mr. Speaker, updating our laws to reflect the way the
world works in the 21st century has been one of my top priorities in
Congress.
After spending two decades in the technology sector where things
change at light speed, it can be hard to understand why we still have
laws on the books that don't reflect how society functions in the
digital age. Nowhere has this been more obvious than in our email
privacy laws that date back to the 1980s.
Under current law, there are more protections for a letter in a
filing cabinet than an email on a server. This was never really the
intent, but email's evolution has made it clear that our policies are
woefully outdated.
I have supported a number of different proposals to reform our
electronic privacy laws, and I will continue to push for those. Today's
vote on the Email Privacy Act is a great step forward for American
civil liberties.
I urge all of my colleagues to vote ``yes'' on this important
legislation, and I urge our friends in the Senate to take up the bill
without delay so we can send it to the President and ensure Americans
are guaranteed the privacy protections most think that they already
have.
Mr. GOODLATTE. Mr. Speaker, I reserve the balance of my time.
Mr. CONYERS. Mr. Speaker, I yield myself such time as I may consume.
I would like to close today by thanking Chairman Goodlatte of the
Judiciary Committee and his staff for working with us to develop the
final draft of this legislation. Once again the chairman has helped us
find a way to resolve our differences and advance core civil liberties
and constitutional values.
I would also like to thank the gentleman from Kansas (Mr. Yoder) and
[[Page H2027]]
the gentleman from Colorado (Mr. Polis) for their leadership on this
issue from the very beginning.
The Email Privacy Act comes to the floor today in large part because
of your work in gathering more than 300 cosponsors for this bill.
Finally, I want to express appreciation to the coalition of
technology companies, civil liberties organizations, and individual
experts whose persistence and dedication have made this moment
possible.
I urge my colleagues to support H.R. 699, the Email Privacy Act. I
believe that they will do so. I also urge our comparable body in the
Senate to take up this measure as quickly as possible.
I yield back the balance of my time.
Mr. GOODLATTE. Mr. Speaker, I yield 2 minutes to the gentleman from
Louisiana (Mr. Scalise), the majority whip.
Mr. SCALISE. Mr. Speaker, I thank Chairman Goodlatte for moving this
bill through his committee. I especially thank Congressman Yoder of
Kansas for bringing this bill forward and for being bold enough to say
let's modernize a law that is so outdated that it goes back to 1986,
governing email communication when we didn't even have email and text
messages.
Why do we want to do this? We want to do it because Federal agencies
are abusing this law to invade the privacy of hardworking, law-abiding
citizens all across this country.
Mr. Speaker, this is a document from the Internal Revenue Service
titled ``Search Warrant Handbook.'' In this document by the IRS, their
protocol says: ``In general, the Fourth Amendment does not protect
communications held in electronic storage, such as email messages
stored on a server, because internet users do not have a reasonable
expectation of privacy in such communications.''
The IRS has made it clear that they don't believe that American
citizens have a Fourth Amendment protection of privacy for their email
communications. The IRS has gone further and is actually reading emails
of American citizens, and no one across the country knows about it
unless the IRS finds something that then they are going to go after you
criminally on.
So they are reading the private emails, Mr. Speaker, of American
citizens every single day, and they have been doing it for years. It is
time for this abuse of power to end.
We need to pass this bill with strong bipartisan support, send it
over to the Senate, and get it to the President's desk so that American
citizens have real privacy protections that they deserve, that they
think they have, but they don't have, Mr. Speaker, because Federal
agencies like the IRS today are reading the private emails of American
citizens and using them against them.
It is wrong. They ought to go get a warrant, but they should not be
reading our private emails when people haven't done anything wrong.
Let's pass this bill.
Mr. GOODLATTE. Mr. Speaker, how much time is remaining?
The SPEAKER pro tempore. The gentleman from Virginia has 1\1/2\
minutes remaining.
Mr. GOODLATTE. Mr. Speaker, I yield 45 seconds to the gentleman from
Texas (Mr. Farenthold), a member of the Judiciary Committee.
Mr. FARENTHOLD. Mr. Speaker, we are here today talking about
modernizing a law, but we are modernizing a law that encompasses a
centuries-old principle.
Back in the days when the Founding Fathers wrote our Constitution,
they were concerned about the government rifling through our papers.
Today we have electronic papers. Stuff is stored in the cloud.
This piece of legislation brings us back in line with the intent of
the Founding Fathers that the government can't just rifle through your
papers.
I urge my colleagues to support it.
Mr. GOODLATTE. Mr. Speaker, I yield myself the balance of my time.
I want to take this time to thank the ranking member, the gentleman
from Michigan (Mr. Conyers), and many Members on his side of the aisle,
including Mr. Polis.
I especially want to thank Mr. Yoder, who has worked long and hard on
this legislation for which he is the chief sponsor.
I most especially want to take note of the fact that we have very
disparate points of view from a whole array of people around this
country, from law enforcement, to technology companies, to civil
liberties organizations. It took a long time to sort through that and
find the common ground that is the legislation we have before us today.
That ground would not have been found without the outstanding work of
our staff, most especially Caroline Lynch, the chief counsel of the
Judiciary Committee's Crime, Terrorism, Homeland Security, and
Investigations Subcommittee, and her able team of attorneys, and Aaron
Hiller, minority counsel as well.
They deserve a great deal of gratitude for the years of work to bring
us to this point where we can pass this important, important
legislation by what I believe will be a resounding majority.
I yield back the balance of my time.
Mr. SWALWELL of California. Mr. Speaker, I rise in support of H.R.
699, the Email Privacy Act.
Current law protecting electronic privacy is drastically out of step
with modern technology, and H.R. 699 represents a long overdue update.
This bill would provide Americans the privacy protections in their
electronic communications they expect and deserve.
While it is important that the House advance H.R. 699 today, no bill
is perfect. Law enforcement has raised a few concerns about it, such as
that it does not provide them the ability to access to critical
information quickly enough. As a former prosecutor, I take their views
seriously. I hope we can continue the dialogue with law enforcement and
consider ways to improve the bill as it moves along in the legislative
process.
I encourage all Members to support H.R. 699.
Ms. JACKSON LEE. Mr. Speaker, I rise in support of H.R. 699, the
Email Privacy Act.
This is an important and long negotiated bill that will update the
Electronic Communications Privacy Act, a law that both protects the
privacy of our email communications and provides a critical tool for
law enforcement to investigate crime.
I want to thank Judiciary Chairman Bob Goodlatte and Ranking Member
John Conyers for their leadership and for working together on this
legislation to accomplish the goals of this bill for the benefit and
protection of citizens, law enforcement, and communications providers.
I am an original cosponsor of this bill, which has 314 cosponsors,
enjoying overwhelming bipartisan support.
The Electronic Communications Privacy Act, or ECPA, was enacted in
1986.
The statute is outdated and provides unjustifiably inconsistent
standards for law enforcement access to stored communications.
The law was designed at a time when few of us used email or could
have imagined a world in which we could securely share information and
edit electronic documents online with others, or where businesses could
input, store, process, and access all data related to their operation.
The outdated, inconsistent, and unclear aspects of this statute
undermine both our privacy interests and law enforcement goals.
It is critical that we enact the central reforms provided by this
bill.
For instance, a probable cause standard should apply to the
government's ability to compel a communications provider to disclose a
customer's email message--no matter how old the message is.
Currently, the statute requires the government to obtain a warrant
based on probable cause to compel disclosure of an email that is in
storage for 180 days or less.
However, the statute only requires a subpoena for the government to
obtain email messages that are older than 180 days.
This makes no sense because citizens have the same, reasonable
expectation that these stored communications are private.
Therefore, we must change the law so that the higher standard applies
regardless of the age of these communications, and H.R. 699 would
accomplish this.
In addition, the law does not adequately protect communications
stored ``in the cloud'' by third parties on behalf of consumers, and a
probable cause warrant should be required for government access.
ECPA additionally provides a lesser standard for some cloud storage
than it does for many communications stored by electronic
communications services.
To further complicate matters, many companies provide both
communications services and remote storage, making the services to the
same customer difficult to separate for purposes of determining which
standard applies.
Applying inadequate and unclear standards to government access to
cloud communications undermines consumer confidence in cloud privacy
and threatens to hamper the development of this important engine of
economic growth.
[[Page H2028]]
H.R. 699 addresses this issue by providing a clear and consistent
probable cause standard for access to the contents of stored
communications for which customers have a reasonable expectation of
privacy.
H.R. 699 would accomplish these fairly straightforward reforms and
that is why it has the support of privacy advocates and electronic
communications companies.
I urge all of my colleagues to support this commonsense, bipartisan
measure.
Mr. BABIN. Mr. Speaker, as a proud original cosponsor of H.R. 699,
the Email Communications Privacy Act (ECPA), I am pleased to rise in
full support of this bill on the House floor.
Since being introduced on February 4, 2015, we have been able to
secure more than 300 cosponsors of this important bill, which will
improve privacy protections for the email communications of ordinary
American citizens.
Under current law there is little protection for the content of
electronic communications stored or maintained by third party service
providers. ECPA corrects this oversight and updates our laws to require
a court ordered warrant that is based on probable cause before an email
service provider can disclose these private communications.
In the current era where individual privacy is often overlooked or
sidelined, this bill takes an important step to protect your privacy.
It is long past due that we update our privacy laws to give emails--a
major means of communication today--the same protection as traditional
mail and telephone calls. This bill has been endorsed by a broad range
of privacy groups, including such conservative organizations as the
Heritage Foundation and FreedomWorks.
Our bill modernizes these outdated statutes to ensure that the rights
protected by the Fourth Amendment extend to Americans' email
correspondence and digital data.
The SPEAKER pro tempore. The question is on the motion offered by the
gentleman from Virginia (Mr. Goodlatte) that the House suspend the
rules and pass the bill, H.R. 699, as amended.
The question was taken.
The SPEAKER pro tempore. In the opinion of the Chair, two-thirds
being in the affirmative, the ayes have it.
Mr. GOODLATTE. Mr. Speaker, on that I demand the yeas and nays.
The yeas and nays were ordered.
The SPEAKER pro tempore. Pursuant to clause 8 of rule XX, further
proceedings on this motion will be postponed.
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