Highlights of Statement of

Gregory T. Nojeim, Legislative Counsel, American Civil Liberties Union

Before the House Judiciary Committee, Constitution Subcommittee

On Legislation To Protect the Privacy of Electronic Communications,

H.R. 5018, H.R. 4987, and H.R. 4908

September 6, 2000

Ø The ACLU applauds the Subcommittee for conducting the hearings and supports the intent of each bill to increase the privacy of electronic communications. Electronic surveillance is at record levels, and law enforcement officials intercept approximately two million innocent conversations each year. The legislation could have the effect of focusing law enforcement efforts on those communications more likely to involve criminal activity.

Ø The three bills the Subcommittee considers today are modest. None of them directly address the FBI's Carnivore program, about which the Subcommittee conducted hearings on July 24. Under this program, the Bureau obtains access to all, or to a substantial part of, the electronic communications of the customers of a particular Internet Service Provider in order to intercept the communications of a particular target. Congress should outlaw Carnivore and any similar approach to electronic surveillance this year.

Ø The "Electronic Communications Privacy Act" (H.R. 5018) and the "Digital Privacy Act" (H.R. 4987) include many similar provisions, and the best of each should appear in the bill that the Subcommittee ultimately adopts. These provisions include:

Ø Increased Reporting Requirements. Both bills would extend to stored electronic communications, such as e-mail, the requirement that the Administrative Office of the United States Courts report annually about the disclosure of such communications to law enforcement pursuant to a court order. The interception of voice communications and electronic communications in transit must already be reported under 18 U.S.C. 2519. Unlike H.R. 4987, H.R. 5018 fails to explicitly extend the reporting requirements to electronic communications disclosed by an Internet Service Provider to law enforcement in response to a subpoena or warrant. To prevent under-reporting, we urge the Subcommittee to ensure that disclosure of such communications to law enforcement be reported regardless of whether they are disclosed pursuant to a court order, warrant or subpoena.

Ø Extension of Statutory Exclusionary Rule. Both bills strengthen the statutory exclusionary rule and would thereby encourage law enforcement officials to comply with the electronic surveillance laws. Current law provides that illegally intercepted voice communications cannot be used in court or in agency hearings. 18 U.S.C. 2515. This statutory provision supplements the exclusionary rule created by the courts to help ensure law enforcement compliance with the Fourth Amendment with respect to both physical searches and electronic surveillance. The statutory exclusionary rule for electronic surveillance is more comprehensive than the Fourth Amendment-inspired rule in at least two ways: (i) there is no "good faith" exception to the statutory exclusionary rule; and (ii) the statutory exclusionary rule can apply in non-criminal cases, including administrative hearings. Both bills would extend the statutory exclusionary rule to electronic communications in transit. The Administration has proposed a similar extension. H.R. 5018 also extends the statutory exclusionary rule to stored electronic communications - an improvement to the approach in H.R. 4987 that we hope the Subcommittee will support.

Ø Strengthened Standards for Pen Register and Trap and Trace Orders. A pen register records telephone numbers dialed from a telephone. A trap and trace device acts like caller ID, and records the phone numbers of incoming calls. Under current law, the standard for obtaining a court order authorizing placement of a pen register or trap and trace device is extremely low. The statute provides that the court shall issue an order authorizing the placement of a pen register or trap and trace device whenever any attorney for the Government or an investigative officer merely certifies in an ex parte proceeding that information likely to be obtained is relevant to an ongoing criminal investigation. 18 U.S.C. 3123. The court acts as a rubber stamp, instead of as an impartial check on law enforcement.

Ø Reasonable Indication of Criminality Standard. H.R. 4987 would strengthen the standards for issuing pen register or trap and trace orders for by requiring a finding that factual evidence "reasonably indicates" that a crime has been, is being, or will be committed, and information likely to be obtained by such installation is relevant to an investigation of that crime. We favor this approach. The "reasonable indication" standard is not new, is substantially less than full "probable cause," and the courts should have no problem applying it. This level of suspicion is already required before a law enforcement officer on the streets can stop a person, demand ID, and conduct a limited pat down search to ensure officer safety. Moreover, the Department of Justice should have no objection to this standard either: it already requires a similar finding by law enforcement officials before a full criminal investigation (as opposed to a preliminary inquiry) can be even be conducted, and a pen register or trap and trace order sought under current law. Section II(c)(1) of The Attorney General's Guidelines on General Crimes, Racketeering Enterprise and Domestic Security/Terrorism Investigations provides in relevant part: "A general crimes investigation may be initiated by the FBI when facts or circumstances reasonably indicate that a federal crime has been, is being, or will be committed."

Ø Applying the Reasonable Suspicion Standard to E-mail Addresses. Unlike H.R. 4987, H.R. 5018 would expand electronic surveillance by explicitly authorizing access to e-mail address information under the "reasonable suspicion" standard discussed above. The bill would also leave in place the extremely low standards for issuing a pen register or trap and trace order for voice communications. We oppose this approach, and will oppose the bill if this provision (Section 4) remains in the legislation. Though it has no statutory authority to do so, the FBI seeks e-mail address information under the pen register and trap and trace provisions in current law. It does this - with some success - even though those provisions allow access only to "numbers dialed" and e-mail addresses usually include letters and are not "dialed." A standard lower than probable cause is inappropriate because e-mail address information is more revealing than are the numbers dialed on a telephone. We urge the Subcommittee to take up this issue in the next Congress, and to reject Section 4 of H.R. 5018 and instead favor Section 4 of H.R. 4987. That would have the effect of affording a higher standard of protection for pen register and trap and trace information, and deferring for the time being the question about whether that standard is appropriate for e-mail addresses and other electronic communications such as clickstream data.

Ø Access To Location Information. H.R. 4987 would require a court order based on probable cause before law enforcement could obtain access to location information generated in connection with the use of a cellular telephone. Currently, law enforcement obtains location information under 18 U.S.C. 2703(d). This section allows access to some information without probable cause. We believe that cell phones ought not become tracking devices, and that the better approach is to prohibit law enforcement access to location information altogether. However, if access to this information is to be granted, probable cause should be required.

Ø Notification of Electronic Surveillance of Employees. The ACLU supports H.R. 4908 as a modest down payment on what needs to be done to protect privacy in work place. The bill would require employers to notify employees annually of their policies regarding electronic surveillance of employees, including their E-mail, Internet use and telephone calls. This modest proposal does not give employees a right to block monitoring. It provides for notice only, and for a private right of action should an employer engage in the monitoring of communications and computer use in a manner inconsistent with its notice. We urge the Subcommittee to strengthen the notice requirements to ensure that they preclude generalized notices that fail to provide adequate information to employees about how they may be monitored. END