Statements on Introduced Bills and Joint Resolutionsby Senator Patrick J. Leahy
Posted on 2015-02-04
LEAHY. Mr. President, I want to talk about privacy because
privacy is not a partisan issue. It never has been, and never should
be. Remember, 30 years ago I was in the minority. The Republicans were
in the majority and controlled the Senate. It was then that I worked
with my colleagues and led the effort to write the Electronic
Communications Privacy Act, ECPA.
It required a lot of education because back then, electronic mail was an emerging technology. The World Wide Web was unimaginable. Electronic data storage was astronomically expensive. No one could have envisioned the way mobile technologies would transform our lives. Yet fortunately many of us in Congress had the foresight to anticipate that these new electronic communications would also need privacy protections.
That was 30 years ago. Look at what has changed since then. Now three decades later, that law is out of date. So today the Senator from Utah, Mr. Lee, and I are reintroducing the Electronic Communications Privacy Act Amendments Act of 2015. We want to bring this law into the 21st century. Our legislation is very straightforward. It ensures that the private information that we Americans electronically store in the cloud gets the same protections as the private information we Americans physically store at home. As it did in 1986, I hope the Senate will come together on a bipartisan basis to support these commonsense protections.
All of us have an expectation that the things we store in our house are private. If law enforcement wants access to them, they have to get the proper search warrants. Today, there seems to be an idea that if they are stored electronically, these rules should not apply.
I believe they should.
The bill Senator Lee and I introduced today protects Americans' digital privacy--in their emails and all the other files and photographs they store in the cloud. It promotes cloud computing and other new technologies by building consumer trust. And it also provides law enforcement agencies with the tools they need to ensure public safety.
I would remind my colleagues that several years ago the U.S. Circuit Court of Appeals for the Sixth Circuit found that email was fully protected by the Fourth Amendment. It said that ``the Fourth Amendment must keep pace with the inexorable march of technological progress, or its guarantees will wither and perish.'' This bill takes up that challenge.
Obviously we have technologies today that nobody would have dreamed of just a couple of generations ago. But we have a Constitution that has protected this country for well over 200 years, and we hope it will protect it for hundreds of years into the future. We need to make sure our laws keep up with the protections we Americans expect from our Constitution.
First and most importantly, the bill enshrines in statute the fundamental Fourth Amendment warrant requirement for email, texts, and other electronic data. It requires that the government have a criminal search warrant based on possible cause to obtain the stored content of Americans' email and other electronic communications from third-party providers. This ensures that email communications have the same protections as phone calls and private documents stored in your home.
However, the bill's warrant requirement contains an important exception to address emergency circumstances. It explicitly states that it does not affect current authorities under the Wiretap Act or the Foreign Intelligence Surveillance Act. And it ensures that law enforcement can continue to investigate corporate wrong-doing by using grand jury subpoenas to obtain emails directly from corporate entities when held on their internal systems.
The second major component of the bill requires law enforcement agencies to promptly notify individuals when the government has obtained their emails through their service providers, but permits a delay of that notice to protect the integrity of ongoing investigations--no different from what we do in other law enforcement matters. The bill would also require service providers to notify the government three days before they inform a customer that the provider disclosed their information to the government.
This is not a Republican or Democratic issue, nor is it liberal or conservative. In fact, Senator Lee and I would note that we have a broad coalition of more than 50 privacy, civil liberties, civil rights, and technology industry groups and leaders from across the political spectrum who have endorsed this reform effort. Support spans from the Heritage Foundation and Americans for Tax Reform, to the Center for Democracy and Technology and the ACLU.
Mr. President, I ask unanimous consent to have printed in the Record the January 22, 2015, coalition letter in support of the bill.
There being no objection, the material was ordered to be printed in the Record, as follows: January 22, 2015.
Hon. Charles Grassley, Chairman, Senate Judiciary Committee.
Hon. Patrick J. Leahy, Ranking Member, Senate Judiciary Committee.
Dear Chairman Grassley and Ranking Member Leahy: We, the undersigned companies and organizations, are writing to urge speedy consideration of Sen. Leahy's and Sen. Lee's ECPA Amendments Act that we expect will be introduced in the coming weeks. The bill would update the Electronic Communications Privacy Act (ECPA) to provide stronger protection to sensitive personal and proprietary communications stored in ``the cloud.'' The legislation was considered and adopted by a voice vote in the Committee in the 113th Congress.
ECPA, which sets standards for government access to private communications, is critically important to businesses, government investigators and ordinary citizens. Though the law was forward-looking when enacted in 1986, technology has advanced dramatically and ECPA has been outpaced. Courts have issued inconsistent interpretations of the law, creating uncertainty for service providers, for law enforcement agencies, and for the hundreds of millions of Americans who use the Internet in their personal and professional lives. Moreover, the Sixth Circuit Court of Appeals in US v. Warshak has held that a provision of ECPA allowing the government to obtain a person's email without a warrant is unconstitutional.
The ECPA Amendments Act would update ECPA in one key respect, making it clear that, except in emergencies or under other existing exceptions, the government must obtain a warrant in order to compel a service provider to disclose the content of emails, texts or other private material stored by the service provider on behalf of its users.
This standard would provide greater privacy protections and create a more level playing field for technology. It would cure the constitutional defect identified by the Sixth Circuit It would allow law enforcement officials to obtain electronic communications in all appropriate cases while protecting [[Page S775]] Americans' constitutional rights. Notably, the Department of Justice and FBI already follow the warrant-for-content rule. It would provide certainty for American businesses developing innovative new services and competing in a global marketplace. It would implement a core principle supported by Digital Due Process, www.digitaldueprocess.org, a broad coalition of companies, privacy groups, think tanks, academics and other groups.- This legislation has seemingly been held up by only one issue--an effort to allow civil regulators to demand, without a warrant, the content of customer documents and communications directly from third party service providers. This should not be permitted. Such warrantless access would expand government power; government regulators currently cannot compel service providers to disclose their customers' communications. It would prejudice the innovative services that all stakeholders support, and would create one procedure for data stored locally and a different one for data stored in the cloud.
Because of all its benefits, there is an extraordinary consensus around ECPA reform--one unmatched by any other technology and privacy issue. Successful passage of ECPA reform sends a powerful message--Congress can act swiftly on crucial, widely supported, bipartisan legislation. Failure to enact reform sends an equally powerful message--that privacy protections are lacking in law enforcement access to user information and that constitutional values are imperiled in a digital world.
For all these reasons, we strongly urge all members of the Senate Judiciary Committee to support the ECPA Amendments Act.
Sincerely, ACT--The App Association, Adobe, Amazon, American Association of Law Libraries, American Booksellers for Free Expression, American Civil Liberties Union, American Library Association, Americans for Tax Reform and Digital Liberty, AOL, Apple, Association of Research Libraries, Automattic, Autonet Mobile, Brennan Center for Justice, BSA |, The Software Alliance, Center for Financial Privacy and Human Rights, Center for Democracy & Technology, Center for National Security Studies, Cisco, Competitive Enterprise Institute, Computer & Communications Industry Association, Consumer Action, Council for Citizens Against Government Waste, Data Foundry, Deluxe Corporation, Demand Progress, Direct Marketing Association, Discovery Institute, Distributed Computing Industry Association (DCIA).
Dropbox, eBay, Electronic Frontier Foundation, Engine, Evernote, Facebook, First Amendment Coalition, Foursquare, FreedomWorks, Future of Privacy Forum, Gen Opp, Golden Frog, Google, Hewlett-Packard, Information Technology Industry Council (ITI), Internet Association, Internet Infrastructure Coalition (I2Coalition), Intuit, Less Government, Liberty Coalition, LinkedIn, NetChoice, New America's Open Technology Institute, Newspaper Association of America, Oracle, Personal, R Street, ServInt, SIIA: Software & Information Industry Association, Snapchat, Sonic, Taxpayers Protection Alliance, TechFreedom, TechNet, The Constitution Project, The Federation of Genealogical Societies, Tumblr, Twitter, U.S. Chamber of Commerce, Venture Politics, Yahoo.
Mr. LEAHY. I am also pleased that Senators Shaheen, Moran, Cornyn, Merkley, Gardner, and Blumenthal have joined this effort with Senator Lee and I. I commend them because we do have an opportunity this year to make progress on bipartisan, commonsense legislation to protect the privacy of Americans' email and update our laws to keep pace with technology. And I also congratulate our House partners, Representatives Yoder and Polis, who are introducing this legislation today in the House of Representatives with 228 cosponsors from both parties.
In the last Congress, the Senate Judiciary Committee unanimously supported this bill, Republicans and Democrats alike. We have continued the hard work of building a broad bipartisan coalition in support of this bill. Now is the time to act swiftly to bring our privacy protections into the digital age.
I will continue to work with Senator Lee, Senator Cornyn, Senator Moran, Senator Shaheen, Senator Merkley, Senator Gardner, and Senator Blumenthal on this issue because while I am proud to have them as cosponsors, I am also proud that we are doing the right thing ______ By Mrs. FEINSTEIN (for herself, Ms. Ayotte, Mrs. Gillibrand, Mrs. Boxer, Ms. Heitkamp, Ms. Baldwin, Mr. Brown, Ms. Mikulski, Ms. Stabenow, Mrs. Capito, Mrs. Shaheen, Mr. Casey, Ms. Hirono, Mrs. McCaskill, Ms. Warren, and Ms. Cantwell): S. 370. A bill to require breast density reporting to physicians and patients by facilities that perform mammograms, and for other purposes; to the Committee on Health, Education, Labor, and Pensions.