Statement of Judiciary Committee Chairman Bob Goodlatte Full Committee Hearing on H.R. 699, the “Email Privacy Act”

Chairman Goodlatte: Today’s hearing examines H.R. 699, the Email Privacy Act, and the need to modernize the Electronic Communications Privacy Act, or “ECPA.”  In enacting ECPA nearly 30 years ago, Congress declared that the law’s purpose was to achieve a “fair balance between the privacy expectations of American citizens and the legitimate needs of law enforcement agencies.”  Reforming this decades-old, outdated law has been a priority for me as chairman of this committee, and I have been working with members of Congress, advocacy groups, and law enforcement for years on many complicated nuances involved in updating this law.  I am pleased to now hold this important hearing to examine the leading reform proposal in the House, H.R. 699, and to examine in more detail the nuances Congress must consider in updating this law. While technology has undoubtedly outpaced the law in the last three decades, the purpose of the law remains steadfast. I am confident that Congress will once again strike that balance, and do so in a way that continues to promote the development and use of new technologies and services and create a statutory framework that will modernize the law to reflect how people communicate with one another today and into the future. ECPA reform has broad-sweeping implications. ECPA, and more specifically the Stored Communications Act, governs federal, state, and local government access to stored email, account records, and subscriber information from telephone, email and other service providers. ECPA not only applies when law enforcement seeks information in a criminal investigation, but also in civil investigations and for public safety emergencies. H.R. 699, at its core, 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.  I support the core of H.R. 699, which would establish a standard that embodies the principles of the 4th amendment and reaffirms our commitment to protecting the privacy interests of the American people. However, our adherence to the 4th amendment should not end there.  Congress can ensure that we are furthering the legitimate needs of law enforcement through ECPA reform by joining with the warrant requirement recognized exceptions and procedures designed to further the legitimate needs of law enforcement.  One of the goals of this legislation is to treat searches in the virtual world and the physical world equally, so it makes sense that the exceptions to the warrant requirement and the procedures governing service of warrants should also be harmonized.  It is well-settled law that the government may conduct a search in the absence of a warrant in certain instances, including when the government determines that an emergency exists requiring the search or when the government obtains the consent of the owner of the information. The Stored Communications Act, however, created a framework unique to the electronic world in which, even in an emergency or with the consent of the customer, disclosure of email content or even non-content records is voluntary at the discretion of the provider. It is also well-established law that a search warrant must be served at the place where the search or seizure occurs.  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.  H.R. 699 would now require the government to also serve the warrant directly on the criminal suspect, a proposal which has raised serious public safety and operational concerns across the law enforcement community. Congress should also continue to ensure that civil investigative agencies are able to obtain electronic communication information for civil violations of federal law.  Courts have routinely held that subpoenas satisfy the reasonableness requirement of the 4th amendment. Unlike a warrant, which is issued without prior notice and is executed, often by force, with an unannounced and unanticipated physical intrusion, a subpoena commences an adversarial process during which the person served with the subpoena may challenge it in court before complying with its demands.  The Stored Communications Act currently authorizes the issuance of a subpoena directly to the provider, albeit with a requirement that the government notify the customer. But Congress can go further to ensure that ECPA satisfies the 4th amendment by requiring that any civil process authorized by the law begin with service of a subpoena directly on the customer.  In this context, the customer is provided notice and the opportunity to contest the subpoena.  Enforcement of the subpoena through a court order issued by a federal judge that protects the rights and privileges of the customer while ensuring that evidence of illegal activity is not insulated from investigators would afford heightened protections beyond that which the courts have deemed necessary to comport with the 4th amendment. Congress has enacted laws that impose penalties for certain conduct, sometimes criminal penalties and sometimes civil.  We have established federal agencies to enforce these laws with the tools necessary to carry out that enforcement.  Congress should ensure that in its efforts to modernize ECPA we do not eliminate access to evidence of violations of federal law simply because Congress chose to make those violations punishable by civil penalties. I want to thank our distinguished witnesses for being here today.  I look forward to hearing from each of you on H.R. 699 and how to properly balance the privacy expectations of American citizens and the legitimate needs of law enforcement.  And I look forward to working with all members on both sides of the aisle to modernize the Electronic Communications Privacy Act. It is worth noting today that we also plan to hold a separate hearing in the future on the issues surrounding law enforcement access to information located on servers outside the U.S.  As with the broader topic of ECPA reform, that is an issue with many nuances that we need to carefully examine.  

For more on today’s hearing, click here.