Goodlatte Statement on Substitute Amendment to H.R. 699, the "Email Privacy Act"

Chairman Goodlatte: This substitute is a carefully-negotiated agreement to update the procedures governing government access to stored communications content and records.  This amendment retains the core goal of H.R. 699 to establish a uniform warrant requirement for stored communications content in criminal investigations, while also protecting and preserving privacy and public safety interests. The amendment removes from the bill a requirement that law enforcement serve the warrant on the target of the investigation.  For three decades, ECPA warrants have been executed with the provider because, as with any other third-party custodian, the information sought is stored with them. This proposal raised profound public safety and operational concerns with a myriad of potential negative consequences. Instead, the substitute amendment authorizes the provider to notify its customers of receipt of a warrant, court order, or subpoena, unless the provider is court ordered to delay such notification. The substitute reinstates a provision from current law 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. The substitute amendment preserves this treatment by maintaining in the statute limiting language regarding remote computing services.  The substitute amendment authorizes a court to require a date for return of service of the warrant.  In the absence of such a requirement, email and cloud providers must promptly respond to warrants for communications content. ECPA currently 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 is required to obtain a warrant even for publicly-disclosed content. The substitute clarifies that commercial public content can be obtained with process other than a warrant. Lastly, the substitute amendment clarifies that nothing in the law limits Congress’s subpoena authority to obtain information from third parties in furtherance of a congressional investigation or oversight and makes a number of technical and conforming improvements to the law.  This substitute amendment represents months of work to ensure that reforms to such a broad-sweeping law reflect Congress’s responsibility to make sure our laws keep pace with advancing technology.  And it does so in a way that enhances privacy protections without sacrificing public safety. I urge all Members to support this amendment. For more on today’s markup, click here.