Groups press for action on requiring warrants for emails

Tech and privacy advocates are pressuring House Republicans to take up an email privacy bill without considering amendments that they say would water it down. 

The privacy bill has been held up for years, despite general agreement in Congress that the government should be required to obtain a warrant before going to technology companies and demanding copies of emails. 

{mosads}The fight is centered now on the House Judiciary Committee, which is led by Rep. Bob Goodlatte (R) of Virginia. Goodlatte has promised to mark up the email privacy bill in March, but has yet to set a date. 

A coalition of several high-profile groups, including the American Civil Liberties Union and the Electronic Frontier Foundation, are pushing for Goodlatte to move forward immediately.

The groups have promised to flood Goodlatte’s office with calls and emails urging him to take up the broadly supported bill and avoid harmful amendments.

“The Chairman has become increasingly isolated in his party and even in his own committee when it comes to support for the bill,” the coalition wrote earlier this week. “Until now, Goodlatte has been a major roadblock when it comes to passing the legislation.”

Three quarters of Judiciary Committee members are sponsoring the email legislation and, as a bloc, would have the numbers to vote down any unwanted amendments. 

Goodlatte’s office declined to detail any possible amendments and said he is still working with stakeholders and other members of the committee on the bill.

“I think there will be amendments,” said Rep. Darrell Issa (R-Calif.), a member of the panel who is not a cosponsor of the privacy bill. “But I don’t see any that haven’t been vetted already.” 

Rep. Suzan DelBene (D-Wash.) has a more expansive privacy bill that tackles many of the same issues, but she said she would resist pushing it as an amendment because reform “desperately needs to get done.”

“There have been rumors that the chairman is working on a possible amendment and if it has substantive changes, then the strategy could change,” she said. “But this is a consensus bill and I’d be happy to see it be a 15-minute markup.”

The bill would close a loophole in the 1986 Electronic Communications Privacy Act (ECPA) that lets the government use a subpoena, rather than a warrant, to force tech companies to hand over customers’ electronic communications if they are more than 180 days old. Critics say that standard is woefully out of date.

The bill updating the rules has more than 300 cosponsors, but is opposed by the Justice Department and some agencies like the Securities and Exchange Commission (SEC), who want a carve-out for enforcement agencies that don’t have the power to obtain a warrant in civil cases. 

The SEC and other law enforcement agencies stopped using the subpoena loophole after a 2010 court ruling — United States v. Warshak — that found government demands for tech companies to turn over customer emails without a warrant is a violation of the Fourth Amendment.

But advocates want the law to be changed to reflect that court decision.  

Goodlatte has said there is nuance to the law, and during a December hearing endorsed some changes pushed by the executive branch. 

He expressed support for one change sought by law enforcement that would make it mandatory for Internet companies to turn over information in an emergency situation before a warrant has been obtained. Currently companies may voluntarily turn over such information in an emergency. 

Tech companies oppose that amendment. Google says it already complies with about 80 percent of emergency requests.  

Goodlatte was not as specific in his endorsement of the civil agency carve-out, but last year noted, “Congress should also continue to ensure that civil investigative agencies are able to obtain electronic communication information for civil violations of federal law.” 

He described a possible framework in which a subpoena would first have to be served to the target of an investigation. If that failed, then a subpoena could be served to a technology company to gain that user’s information.