[Congressional Record Volume 163, Number 20 (Monday, February 6, 2017)]
[House]
[Pages H988-H992]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
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EMAIL PRIVACY ACT
Mr. YODER. Mr. Speaker, I move to suspend the rules and pass the bill
(H.R. 387) 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.
The Clerk read the title of the bill.
The text of the bill is as follows:
H.R. 387
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''; and
(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
``(D) as otherwise authorized in paragraph (2).
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``(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
Kansas (Mr. Yoder) and the gentleman from Michigan (Mr. Conyers) each
will control 20 minutes.
The Chair recognizes the gentleman from Kansas.
General Leave
Mr. YODER. Mr. Speaker, I ask unanimous consent that all Members have
5 legislative days to revise and extend their remarks and to include
any extraneous material on H.R. 387, currently under consideration.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Kansas?
There was no objection.
Mr. YODER. Mr. Speaker, I yield myself such time as I may consume.
Thank you for this opportunity to have this very important debate on
a critical piece of legislation that has been a long time in the
coming. I thank the chairman of the Judiciary Committee, Representative
Goodlatte, and Ranking Member Conyers for their work and leadership in
shepherding this bill through the process and getting us to this moment
on the floor today. I thank my colleague, Mr. Polis, for cosponsoring
this legislation and working so tirelessly over the past few years.
I think we originally introduced this bill back in 2013, and it takes
a while sometimes for a good idea to reach this point in Congress, Mr.
Speaker, and this is an idea whose time has come. So I rise today to
support these long overdue, bipartisan ideas in this legislation that
will bring our digital privacy laws into the 21st century.
Mr. Speaker, the year was 1986. We can all try to think back where we
were in 1986. I am sure Kentucky had a good basketball team back then.
I know Kansas did. I was 10 years old, hoping to get a new Nintendo
game console for Christmas so I could play Super Mario Brothers. You
could buy a ticket to see Top Gun for $2.75. In the tech world, 1986
marked the debut of the first laptop computer. It was 12 pounds. A
mobile phone was the size of a small pet.
Mr. Speaker, it was also the year in which Congress passed the
Electronic Communication Privacy Act. Now, this law, at the time, there
were only 10 million email users worldwide. Most of us probably didn't
have email at that time. Most Americans didn't for sure. Now, today,
232 million Americans send an email at least once per month. The first
text message wouldn't be sent for another 6 years, and now Americans
send more than a billion texts each year.
Mr. Speaker, the times and technologies have changed, but the laws
have not kept pace. Federal laws regarding how we treat and protect the
privacy of digital communications have been unchanged since 1986 and,
because of it, our digital content is not afforded the same Fourth
Amendment protections as our paper documents on our desks in our home.
Now, the Fourth Amendment protects the ``right of the people to be
secure in their persons, houses, papers, and effects against
unreasonable searches and seizures.'' Yet when it comes to what is on
Americans' cell phones, their home computers, what might be in the
cloud, or on their business computer, whatever it is, our laws allow
Federal agencies like the IRS, the SEC, or law enforcement to kick down
their virtual doors and search an innocent American's private
communications and data storage without a warrant, without probable
cause or any type of due process.
Now, many Americans take great precautions to protect and store their
digital communications on services
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like Dropbox, for example, or an iCloud. Yet our Federal laws
perversely treat that data storage as if somehow that data has been
abandoned by its owner and, therefore, that data loses its
constitutional protection.
Well, in 1986, Mr. Speaker, lawmakers believed within reason that
individuals and families wouldn't store mass amounts of data online.
They wouldn't leave their Gmail stored online. They might have their
own servers, or they would delete the emails or delete the data.
Therefore, if an individual actually left information on a third-
party storage, it was akin to that person leaving their documents in a
garbage can at the end of their driveway, therefore, voiding its Fourth
Amendment protections. Thus, that individual had no reasonable
expectation of privacy in regards to that email under the Fourth
Amendment.
As we all know, virtually everyone now stores millions of emails and
tons of gigabytes of data and other personal items on third-party
servers. Those emails contain pictures and videos of our kids, our
business transactions, our most sensitive information that the
government shouldn't have access to without a warrant, without due
process as required by the Constitution of the United States.
Establishing these privacy protections are critical for both ensuring
that American's rights are protected, but also, Mr. Speaker, ensuring
that companies that do business in America know that they can ensure
their customers that if they store with them, they can protect it; that
that information won't be intruded upon or searched and seized without
due process of law, without their permission, without the government
proving that they have a need for that information and protecting
individuals' rights.
We ensure that cloud computer services are covered by the same
warranty for content requirements and that all data is treated as if it
is paper documents given our law modernization that is desperately
needed.
In addition to updating our constitutional rights, these privacy
protections do create business certainty, making sure consumers will be
happy to continue to use cloud storage services.
Mr. Speaker, fundamentally, these changes in my bill codify the Sixth
Circuit's decision in U.S. v. Warshak, which held that email content is
protected by the Fourth Amendment. A decision which, while important,
needs to be enshrined in law as it only currently applies in the Sixth
Circuit. It must be applied nationwide.
Mr. Speaker, today we can cast a unifying vote in these divided
times. We so desperately want to find points of bipartisanship and
collegiality and to tell the American people that this Congress, this
government is doing great things to help protect Americans' rights and
to help modernize our laws in a way that is consistent with how we
communicate today.
I thank my colleagues on the left side of the aisle for their strong
work and strong support. This is a unifying bill. It passed the House
last year 419-0. So it is the type of thing that is great policy coming
out of the Judiciary Committee. I look forward to seeing it pass again
on the floor later today.
So, Mr. Speaker, we can send a unifying vote and a unifying message
to the American people today. We can dispel the myth that Congress
doesn't work together, and we can send a strong message to the American
people that their privacy matters.
I urge passage.
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--namely, the right to be
free from unreasonable search and seizure--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. We do
so for the second time.
H.R. 387, 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 investigators and government
agents who seek access to our email, our advice is rather simple: get a
warrant.
It is an idea whose time has long since come. So 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. 387 also codifies the right of the providers to give notice of
this intrusion to their customers, except in certain exigent
circumstances that must be also validated by the court.
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.
Last Congress, in the Judiciary Committee, we reached quick consensus
that a civil carve-out of any kind is unworkable, unconstitutional, or
maybe both. I would have preferred to keep 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 accessed our electronic information. The government
should have an obligation to provide us with some form of notice when
intruding on a record of our most private conversations.
I fully 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. Last Congress, the House passed
this legislation that has already been noted by 419-0. I hope that
today we can send our colleagues in the Senate a similarly strong
signal to pass this bill.
This legislation is several years in the making, and it should not be
delayed any further.
Accordingly, I urge my colleagues to support H.R. 387, the Email
Privacy Act.
I reserve the balance of my time.
The SPEAKER pro tempore. Without objection, the gentleman from
Virginia (Mr. Goodlatte) will control the time of the majority.
There was no objection.
Mr. GOODLATTE. Mr. Speaker, I yield myself such time as I may
consume.
Today, the House of Representatives will again vote to approve
legislation that reforms and modernizes the Electronic Communications
Privacy Act or ECPA. Last year, identical legislation passed with
unanimous bipartisan support by a vote of 419-0.
Reforming ECPA has been a top 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.
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, 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 of the last three decades has
[[Page H991]]
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.
{time} 1745
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 provided,
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, photos,
videos, and documents stored in the cloud. H.R. 387 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 upon 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. 387 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 website, versus content disclosed
only to one or a handful of persons, like an email or 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. 387 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 in the future.
I would like to thank Congressman Yoder and Congressman Polis for
introducing the underlying legislation.
It is my hope that today the House will once again approve this
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.
Mr. Speaker, I reserve the balance of my time.
Mr. CONYERS. Mr. Speaker, when the gentleman from New York (Mr.
Nadler) was chairman of the Constitution, Civil Rights, and Civil
Liberties Subcommittee in 2010, he held three hearings on various
aspects of ECPA, including the need for a warrant requirement.
I yield 3 minutes to the gentleman from New York (Mr. Nadler).
Mr. NADLER. Mr. Speaker, I rise in strong support of H.R. 387, the
Email Privacy Act. I am proud to be an original cosponsor of this
legislation, which will provide a critical update to the privacy laws
governing electronic communications.
The Electronic Communications Privacy Act, or ECPA as it is known,
was enacted in 1986. It was an attempt to reestablish a balance between
privacy and law enforcement needs at a time when personal and business
computing was becoming more commonplace. Over the last 30 years,
however, we have seen a revolution in communications technology, and
what might have made sense in 1986 is vastly out of date today.
New technologies, including cloud computing, social networking, and
location-based services, have rendered many of the law's provisions
outdated, vague, or inapplicable to emerging innovations. For example,
even a single email is potentially subject to multiple different legal
standards under current law.
In 2009 and 2010, when I was the chairman of the Subcommittee on the
Constitution, Civil Rights, and Civil Liberties, we held multiple
hearings to consider reforms to our Nation's electronic and privacy
laws. This work culminated in the Electronic Communications Privacy Act
Modernization Act of 2012, a bill I introduced along with Ranking
Member Conyers requiring law enforcement to obtain a warrant based on
probable cause before searching emails. That approach, now embodied in
the Yoder-Polis Email Privacy Act, is what we are here today to
consider.
In an era in which government access to an individual's private
information held by third-party providers has become far too easy, this
legislation will finally update our laws to reflect our new
understanding of what it means, in the words of the Fourth Amendment,
for ``people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures.''
Clarifying the laws will also 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.
This bill is not perfect and, clearly, there is more to be done. In
particular, we must keep working to require a probable cause warrant
for location information. However, this bill is an important step
forward toward ensuring that our laws strike the right balance between
the interests and needs of law enforcement and the privacy rights of
the American people. I urge my colleagues to support it.
I congratulate all those involved in its development.
Mr. GOODLATTE. Mr. Speaker, I yield such time as he may consume to
the gentleman from Minnesota (Mr. Emmer).
Mr. EMMER. Mr. Speaker, the American people's Fourth Amendment right
against unreasonable search and seizure by our government must always
be protected. Unfortunately, our privacy protections from government
intrusion have not kept pace with the way we communicate with each
other. It is long past time that we update our Nation's electronic
communication privacy laws.
The last time we updated these laws was 1986. That was 6 years after
the U.S. Olympic Hockey team's Miracle on Ice, 2 years after I
graduated from college, and 1 year before the Minnesota Twins won their
first World Series. Simply put, Mr. Speaker, that was a long time ago.
Today, more than 200 million Americans have access to a smartphone,
and many more use email and cloud technology. However, many Americans
may not realize that these antiquated laws allow law enforcement to
read every email that is more than 6 months old, without a warrant.
The Email Privacy Act would codify the reasonable expectation of
privacy Americans already have in their electronic communications by
requiring a search warrant for private digital communications.
I was pleased to support this legislation when it passed unanimously
in the House last Congress, and I look forward to its swift
consideration in both Chambers in the 115th. I urge all of my
[[Page H992]]
colleagues to support this long overdue modification of the law.
Mr. CONYERS. Mr. Speaker, I yield 4 minutes to the gentleman from
Colorado (Mr. Polis), a former member of the Judiciary Committee and
the lead Democratic sponsor of this bill.
Mr. POLIS. Mr. Speaker, the passage of the Email Privacy Act is long
overdue. The fact that the law that governs the government access to
emails dates from 1986, before email was really a mass phenomena, is a
glaring loophole in our privacy protection laws.
1986 was a time when we used floppy disks to store our information,
when, if any internet existed at all, it was just a few people at
research universities communicating with another. It was far from a
mass phenomena.
Today, this bill catches up with the reasonable expectation that
consumers already have that their emails are private. Just as Americans
view their phone conversations as private, their physical letters
through the mail private, Americans view their emails the same way.
Yet, until we close this loophole, the government maintains access,
without a warrant, to emails that are older than 6 months in a way that
they do not allow access to your old personal letters filed away in a
filing cabinet in your office. They don't allow access to old voice
mails, and emails are, frankly, no different.
The Email Privacy Act requires that Americans have the same legal
protection for our emails as we do for paper letters, faxes, and other
types of communication that may remain sitting around. Updating this
law simply aligns the law to the digital and physical world. It has
taken too long already. Today is a major step forward.
I would like to highlight the House has already passed this bill
unanimously last session. How rare it is not just Democrats and
Republicans coming together, not just Chairman Goodlatte and Ranking
Member Conyers, but every single Democrat and Republican coming
together, Mr. Speaker. That is rare, and yet this body has spoken
overwhelmingly last session and I hope will speak overwhelmingly again
today to encourage the Senate to promptly bring up this bill and pass
it into law.
This bill is a strong victory for bipartisanship. This bill has been
one of the most popular bills in the entire Congress. I am proud to
say, as the lead Democrat, this bill had 314 cosponsors last Congress
and passed unanimously.
Back when Congress passed the Electronic Communications Privacy Act
in 1986, it is fair to say that electronic communications meant
something different than it means today. Thirty years ago, modern email
simply didn't exist. And today, with 24/7 accessibility, accessibility
on our smart devices, in our homes, everywhere else, it has been
estimated that there were 205 billion emails sent each day by
Americans. Those emails contain private communications for millions of
us, and they deserve the same right of privacy as the letters in your
file cabinet or your desk.
You often hear Members talk about commonsense bills. Well, this bill
really defines common sense. When you read our bill, there is nothing
more common sense than the Email Privacy Act, which is why the bill
passed 419-0 last Congress. Unfortunately, the bill didn't make it to a
Senate Judiciary Committee vote, which is why I am so thrilled that
Chairman Goodlatte and Mr. Conyers have succeeded in having Mr.
McCarthy and Speaker Ryan bring this bill forward so early this
session, giving the Senate a chance to act.
I want to thank my colleague, Mr. Yoder, for his hard work as the
lead sponsor on this bill. I remember he and I, in gathering floor
sponsors, would have these friendly contests of who could get more,
Democrats or Republicans. That is how popular this bill was in terms of
gaining 314 cosponsors, more than any other bill in the House of
Representatives at that time.
I urge my colleagues to vote ``yes'' on this bill. Send a strong
message to the Senate to vote immediately on the Email Privacy Act.
Tell the Senate it is time to stand up for the privacy of Americans.
This bill must be passed. I urge my colleagues to vote ``yes.''
Mr. CONYERS. Mr. Speaker, I have no further speakers.
I yield back the balance of my time.
Mr. GOODLATTE. Mr. Speaker, I urge my colleagues to vote for this
good legislation.
I yield back the balance of my time.
Mr. SWALWELL of California. Mr. Speaker, I rise in support of H.R.
387, the Email Privacy Act.
As I said last Congress, current law is woefully out of date when it
comes to protecting privacy in electronic communications. I support
H.R. 387, just as I supported the same legislation previously, because
it is long past time we afforded Americans the privacy they are due
online.
At the same time, I am disappointed this bill has come straight to
the Floor, and not through the Judiciary Committee, a committee on
which I sit. Nor are any Members able to offer amendments on the Floor.
Going through the committee process and allowing amendments on the
Floor would have enabled us to address some of the concerns raised by
law enforcement about H.R. 387, such as its view that the bill fails to
enable personnel to expediently obtain critical evidence. As a former
prosecutor I share its interest in making sure that while we improve
privacy protections we do not impede the ability to bring people
swiftly to justice. I urge the Senate to work to address the points
raised by law enforcement so we can continue to improve H.R. 387.
I encourage all Members to support H.R. 387.
The SPEAKER pro tempore. The question is on the motion offered by the
gentleman from Kansas (Mr. Yoder) that the House suspend the rules and
pass the bill, H.R. 387.
The question was taken; and (two-thirds being in the affirmative) the
rules were suspended and the bill was passed.
A motion to reconsider was laid on the table.
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