[Congressional Record (Bound Edition), Volume 163 (2017), Part 2]
[House]
[Pages 1840-1845]
[From the U.S. Government Publishing Office, www.gpo.gov]




                              {time}  1730
                           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

[[Page 1841]]

     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).
       ``(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

[[Page 1842]]

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 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.

[[Page 1843]]

  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 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

[[Page 1844]]

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 
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.
  Mr. JOHNSON of Georgia. Mr. Speaker, I stand in strong support to 
H.R. 387, the Email Privacy Act.
  Enacting the amendments outlined in this bill will provide a much 
needed update to the Electronic Communication Privacy Act of 1986 
(ECPA). ECPA paved the way for protecting the rapidly advancing field 
of electronic communications. Although this law made headway in 
assuring the privacy of the telecommunications of Americans, electronic 
communications have far outpaced the current regulation.
  The provisions of the Email Privacy Act reaffirm the rights granted 
Americans by the Fourth Amendment. Citizens should not be subjected to 
unlawful search and seizure of their private property. The 
communications of Americans are personal and private and must

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be treated as such by our government. H.R. 387, however, recognizes 
that circumstances may require law enforcement to move quickly and 
require access to electronic communications. Preserving law 
enforcement's ability to preserve records, to delay notification to 
subscribers that a warrant is out for their data, and by requiring 
timely responses to warrants reflects the security concerns expressed 
during the Judiciary Committee markup. Ensuring law enforcement has 
probable cause in order to access stored email, texts, and photos, 
while also providing the above exceptions and flexibility to the rule 
balancing the needs of law enforcement and public safety with the right 
to individual privacy.
  Calls for reform have come from both sides of the aisle. Upholding 
the Fourth Amendment is not a partisan issue and I am overjoyed to see 
my colleagues from both parties standing by this bill. Failing to pass 
the Email Privacy Act endangers the principal values of our Republic. 
Our constituents have entrusted us, not only as their Representatives, 
but as defenders of the Constitution and the rights of all Americans.
  The passage of the Electronic Communications Privacy Act will 
engender confidence in both law enforcement and privacy laws as 
Americans will know their emails will only be accessed if there is 
cause. I strongly urge my colleagues to vote Yes on the resolution.
  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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