Communications privacy act . Guest ecpa is, quite simply, in todays world the average american expects that the email they send to their loved one is going to have the same constitutional protections as the love letter they may have put in their desk. But unfortunately, our laws that govern when police can access Digital Content havent been updated since 1986. In the interim, there have been courts that have said police have to get a warrant before they get things like emails or private facebook messages. What this would do is, essentially, put that protection into the law. Thats consistent with the policy adopted by the fbi. Its similar to what google, microsoft and other major providers already require. But what it does is put that requirement into the law, eliminating any ambiguity about the protections that should apply to peoples private, sensitive digital information. Host now, whats the legislative discuss of an update to ecpa right now . Guest you know, right now the house has passed a bill 4190. So its been supported by republicans host and what does that bill do . Guest that bill would put in place the warrant requirement and basically say anytime police want to get your emails, other types of Digital Content, they have to come to providers with a warrant. And its got unanimous support in the house. Its backed by rightleaning groups, leftleaning groups, companies. It has support thats hard to get for, frankly, name ago post office. But right now that bill is sitting in the senate, and were waiting for it to move and to pass and become law. Host why is it sitting in the senate, do you know . Guest right now its slated to be taken up by the Senate Judiciary committee next week, and there have been a host of amendments proposed. Many of these amendments are unnecessary, many are controversial. But the hope is that this bill moves cleanly given the broad base of support not only in the house, but in the public at large who very much want to feel that their rights are protected in the digital age. Host well, also joining us is bryan porter. Bryan porter is a Commonwealth Attorney or state attorney in the commonwealth of virginia. Mr. Porter, what do you think about the legislative efforts to update the Electronic Communications privacy act . Guest well, interestingly enough, i dont really think that im too far apart from ms. Gulianis positions that she just stated a few minutes ago. Actually, in virginia weve been proactive with making sure warrants are obtained when were trying to get peoples Electronic Communications, particularly emails. I know over the course of my 15 years as a prosecutor on a number of occasions ive obtained emails, but every single time weve used a search warrant in an effort to obtain that. I think what is important from what was said was that what needs to happen is that ecpa, when its amended, needs to give the same protection to someones love letter as they would also have if that was written electronically, not additional protection. And from the investigative and Law Enforcement field, that is really what our main concern is, is to make sure that Electronic Communications are provided with the same level of protection, not an extra level of protection beyond what you would expect in your home or in your bank accounts. Host well, what is the legislative effort to add an extra layer, as you call it . Guest well, one of the things that concerns us about ecpa as its currently written in the revised position before the senate, is it does not allow for the traditional exceptions to the search warrant requirement that are often used by Law Enforcement, for instance, in a critical missing person case or where someones actual personal, physical safety might be in danger. In other words, there are very limited circumstances that a Police Officer or a federal agent might be able to access somebodys written documents, access their home, their car without a search warrant in an emergency situation. And our position is currently as written those exceptions are not actually contemplated by the current version of ecpa. So its one of our main areas of concern. One other area of concern for us in the investigative field in the Law Enforcement arena is the fact that there really isnt any industrywide standards for providers. In other words, i can tell you from personal experience its a much different experience dealing with facebook, for example, than google in relation to the amount of information we get back, the rapidity in which its actually given to us and the kinds of obstacles we face when dealing with these different providers. So one of the things wed also liking to see is that the ecpa, when it is amended and enacted, would give us some kind of standards for the providers to follow so that we have some determination as to when this informations going to be given to us and under what circumstances it might be given. Before we introduce our guest reporter, neema singh guliani, what did you hear from mr. Porter . Guest i think the issues are addressed in the legislation. Its not providing more protection to your email than a love letter, its providing the equivalent protection and the protection that the constitution requires. In response to sort of concerns about emergencies, you know, right now the existing standard is that if police have an emergency, they can go to provider and say ive got an emergency, i need information, and providers routinely respond to those requests. Many providers now have teams on call 24 hours a day, in fact, to respond to those requests. The legislation thats pending preserves that existing infrastructure. And importantly, it does one of the things that we heard that is important, which is sets standards what all providers, large and small, would follow. Must follow. And importantly, it clarifies that a warrant is the right process, it is the right standard that must be met. So its really a step forward in terms of creating clear standards that companies can follow and that Law Enforcement and prosecutors can expect. Host mr. Porter . Guest well, i guess we have some misunderstanding or perhaps disagreement about exactly what is contemplated by ecpa. Its going through an amendment process, and perhaps the end result might address some of our concerns. But these are areas where i think as Law Enforcement officers we sometimes are seen as being resistant to the idea of having warrants for this type of information. I dont think thats accurate, at least not from my standpoint. I think ive been very forwardthinking. I think ndaa, the National District attorneys association, has been forwardthinking in accepting in almost every circumstance a warrant based on probable cause is the way to go. But this is a huge change. Its a very complicated bill, and were asking that the senate give Due Diligence and go through it and understand not just Civil Liberties arguments, but also the arguments of Law Enforcement. We dont use this type of information, at least at the state level, to investigate pet the city crimes. We use the information that we obtain from these types of records in combating multistate Drug Trafficking organizations, Human Trafficking organizations. I know ive done that a couple of times just in the city of alexandria over the past couple of years, and homicides as well. So you do have real, serious concerns here about both the level of crime and the safety of human beings at issue. We want to make sure those concerns are adequately addressed by the amended legislation. Host well, joining our conversation is amir nasr of the morning consult. He coffers technology for that publication. Thank you for having me. A question that your answer kind of brought to mind. In the senate now, the Judiciary Committee postponed their vote last week to address some concerns that, of many. Senator john cornyn had proposed a couple of amendments, one of them was to kind of help Counterterrorism Operations and the other is actually what you were talking about, dealing with emergency situations. Im curious from both of you kind of what your thoughts are on those amendments. For you, whether they fix the legislation, and for you whether that kind of, you know, undermines it excessively. Guest well, id have to see the final version in order to be able to accurately answer your question. All were asking is that the amendment thats finally adopted, if there is one thats adopted, just basically encompass the current exigent circumstance exceptions to the search warrant requirement and basically codify that in ecpa. So im talking about true emergencies here, situations in which a person maybe with alzheimers is missing, and the police need to locate this person immediately because they might be in physical danger, dont have time necessarily to obtain a search warrant and, obviously, we dont want anyone to be harmed because of an hourslong rate in wait in or to get a search warrant from a magistrate. Talking about that, underage people who might be at arm or under risk of harm and the need to find seriously dangerous felons in a short period of time if we have some basic information about where they might be. Guest yeah. I mean, i think you raise some great points. I think the first question to ask is, you know, on a bill that passed 4190, why are we talking about additional amendments when theres such a broad base of support . With regards to the two amendments senator cornyn raised, they both raise a host of Civil Liberties and privacy concerns. One of them would dramatically expand the Surveillance Authority of the fbi and allow them to with just a subpoena and without a court order get information about individuals browsing history, what web sites they might visit, information about the to and from of emails they may send, Location Information that might be associated with someones ip address. I think the average american would be very concerned to know that the fbi could get that information without going to court, particularly given the history of abuse weve seen with these types of subpoenas. For example, you know, the Inspector General has noted that these types of National Security letters as theyre called have been abused in the past and have been used in circumstances they shouldnt have been used. Given the controversy, given the concerns with this amendment, this is just not the bill to put that amendment on, and its something that should be subject to robust debate, and im confident that after that debate members of congress will say, well, this is a problem. The Second Amendment that senator cornyn put forward would have required that providers, Companies Like google and microsoft, respond to emergency requests even in cases where they felt that no emergency existed. Even if they had evidence that a Law Enforcement official was trying to abuse this type of exception. And what weve seen in the past is removing the ability of providers to resist requests that they deem as improper is a real problem. Because there has been abuse of these exceptions in the past. Is so, for example, in 2010 the department of justices Inspector General examined use of these socalled Emergency Exceptions in a National Security on context, and they fd there had been abuse. There were cases where requests were put in in circumstances that werent truly exigent. And its a problem when youre removing the protections against those types of requests and there are no protections to insure if there is abuse, that information isnt used in a civil case, isnt used in a criminal case, that someone has the ability to say, you know what . No emergency existed. My rights have been violated, heres the redress i would like. Barring the Civil Liberties concerns, is it concerning for tech and privacy advocates that senator cornyn is, obviously, very powerful in the senate, but hes also a cosponsor. Does that, you know, make Civil Liberties advocates going wary to a potential committee or full senate vote on the underlying bill . Guest you know, senator cornyn is a cosponsor of the legislation, and im confident a path forward exists. I think that these particular amendments that have been put forward are concerning. I think that the senator and other members of congress have heard those concerns and. And really i go back to the house vote. Its really a nobrainer for the senate to take it up and pass. Its rare that you see a piece of legislation that has such a broad base of support by individuals and groups across the political spectrum and for which industry also say is desperately needed and is supportive of. Mr. Porter, so the house bill that shes talking about, 4190, underwent a few changes in committee that many privacy advocates werent, you know, enthralled about. But, you know, they were okay with it moving forward, you know, they took out a notification requirement, congress subpoena powers were maintained. Im curious from Law Enforcements standpoint how do you feel about that bill that ended up passing . Was that still insufficient in terms of your concerns . Well, i think its a very good question. I think, again, Law Enforcements perspective is law that surrounds obtaining electronic records and, by the way, almost every Major Investigation in todays age can utilize electronic ed as part of the information evidence as part of the information, the prosecution of serious criminals. Those types of entities, providers that maintain and collect this type of electronic evidence, they need to be subject to the same rules as the Banking Industry or a Storage Facility that has physical objects of evidence. In other words, there shouldnt be additional protections beyond what the constitution requires for this particular class of evidence. Now, its very difficult because in most cases when youre talking about physical objects, its just a human being or perhaps a company that pezs these possesses these to objects. Here we have the intervening layer of having providers involved in it. And, for instance, the point that was made a few minutes ago about having providers being given the opportunity to basically reject a process thats been issued for records, thats difficult from a Law Enforcement perspective because these providers have Business Concerns at their heart. Theyre not worried about whether or not the investigations going to go well or whether its not even actually a serious criminal might be prosecuted with the evidence. Theyre worried about selling their product and making sure that their client base is happy with the protections, and i think its Good Business for them to be seen fighting the good fight, if you will. Its a real problem for us. And with regards to the notification requirement, thats far beyond whats required of any other type of search warrant. A search warrant for minutes residence, you can get a search warrant for somebodys bank vault, their safety deposit box. Theres no notification requirement at that point. Obviously, in most cases the search warrants public record. Defendant might very well get ahold of that. Their Defense Attorneys going to be provided a copy of the search warrant, but the idea we might have to tell a child pornographer or a human trafficker or a member of a criminal street gang that theyre being investigated before were ready to actually bring charges puts a Chilling Effect on all of Law Enforcement nationwide. Those were our concerns with that bill. Im glad they were addressed in the be amendment process. Host the Fourth Amendment of the constitution reads the right of the people to be secure in this their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated, and no warrant shall issue but upon probable cause. And particularly describing the place to be searched and the persons or things to be seized. Should that apply uniformly to Electronic Communications, mr. Porter . Guest i absolutely agree that it should, but i would make a couple of points about the forth amendment. First of all, its very limited in what it actually says. So a search must be republican, okay . So reasonable, okay . So that doesnt mean every search ever conducted has to be done pursuant to a warrant. Thats not what the text says. It has to be reasonable or,tively, not unreasonable. So in some circumstances like we were talking about earlier, perhaps a dangerous felon who needs to be caught before they can do any more harm to the citizenry, in those types of emergency circumstances it is actually reasonable to conduct the search without a warrant. So i agree with my counterpart here in almost all circumstances, in the vast majority of circumstances when we have the ability to resort to legal process, obviously, thats the way it should be done. But a reasonable search in some circumstances could be done warrantlessly in emergency situations, and thats the law for a bank vault, a safety deposit box, somebodys home, and we would argue also should be the exact standard for host neema singh guliani. Guest yeah, i just want to jump in, this isnt in the bill, but the right to be notified when the government is requesting your information is a cornerstone of the Fourth Amendment. What that means is you can go to court and say id like for return of my information. You can check government surveillance or government searches that are unlawful and improper. And historically, just as a practical matter, you know, when you had a love letter stored in your desk, you knew when police went to get that letter because they had to enter onto your property and request permission into your house or force their way boo your house. The fact this bill doesnt include a notification requirement, doesnt require application to notify you either immediately or in cases where it might jeopardize an investigation means that as a practical matter if police get a decades worth of your gmail and youre never charged with a crime, you may never know so that you can go to court and get redress. And that is a huge emission. Its not in this bill, but that is Something Congress will have to deal with in this future, and that is a protection that should be included in legislation. On the note of notification, i mean, i think its interesting because now you have microsoft suing the u. S. Government for their frequent use of gag orders, kind of barring them from notifying individuals when their emails, messages have been seized. How do you think, i mean, theyre only one of many Tech Companies that have gotten involved or tech trade groups that have said, you know, we want a change to this. How do you think that contributes to the whole discussion considering that, like you said earlier, theyre kind of the gatekeepers of the information . Theyre the ones who have it . Guest well, i this i it goes back to i think it goes back to my earlier point. The providers are seeing it through the prism of Good Business practices; wanting to make their customers happen. Encryptions part of that discussion, good security for their accounts, obviously, very important to people. And i dont think theres anything wrong with that. I mean, i think thats to be expected. Its an unusual circumstance where so much really relevant information is in the hands of third parties. And i think weve actually been more forwardthinking than were sometimes given credit for in the Law Enforcement field. Theres a very clear argument to be made that there is no Fourth Amendment protection when people give their information to a Third Party Provider like an email or cell phone provider. Im not making that argument here because i agree that the law needs to change and alter Going Forward as communications and privacy concerns change over the years. But youve got to start with that issue. Now, it was brought up that when you had a love letter and the police would come in your house and, therefore, they would know theyd taken your love letter. Well, it could have happened that you kept your love letter in a safety deposit box, and the police got it when you werent looking. The point is, there is no notification requirement. A person is ultimately charged with an offense, you wish to use that evidence against them, obviously, theyre going to get a copy of the search warrant and have an ability to fight that in court. But if youre talking about just hypothetically a child pornographer, sometimes it can take a year, maybe 18 months to get that investigation all the way through. If the provisions for notification had gone through as they were written in the original bill, as soon as a search warrant is obtained, that six months or whatever time period that was in the bill starts to tick immediately. And at the end of six months if were not ready to charge, weve got to notify the person. The obvious import of that is that the evidence is going to be destroyed. So thats a real concern. And, again, what were asking for is the same type of protections given to peoples homes, their other objects, other effects to be adopted in the electronic world. Guest if i could just, you know, respond to one of those points. Theres this issue raised, wont notice interfere with the ability of Law Enforcement to do their job. Lets say they have a sensitive investigation. The provisions in the bill would have allowed Law Enforcement to go to court and say, look, notifying the individual would jeopardize the investigation. We would prevent the provider and delay notification on the part of the government. And those orders could be renewed. So if the investigation took a year, that notification wouldnt be provided until the investigation was completed and there would be no concern about tampering with it or the evidence. And so the existing notification provision allowed the government to meet its obligation to provide notice. That obligation that has been acknowledged in court decisions, that obligation that has historically just been something that Law Enforcement could not evade their duty. But it also accommodates Law Enforcements legitimate needs and insures that that type of notification doesnt infear with the ability to conduct interfere with the ability to conduct an investigation thats extremely sensitive. Guest well, my understanding was at some point the bill actually encompassed the ability to delay notification, but only for a total of six months. If theres a conversation to be had about, you know, the ability to prove to a court that maintaining the secrecy of the investigation ongoing and that can be updated on a periodic business, its a conversation we might be willing to have. But the point is, is that that is not required of any other type of search warrant with. If i have a search warrant for somebodys home, if i can execute the search warrant, get in and get out without them being knowing that weve invaded their home and done the search inside of their home, theres no notification requirement in the code that makes us have any obligation to call this person and tell them that we had a search warrant and that we executed it at their residence. I would also point out that, again, notification provisions and also and having the right to refuse process because they dont think that a true emergency exists, those are the types of protections that could be given and abused by the providers in this case to try to throw up roadblocks to Law Enforcement. Were very concerned about those. Well, as were having this conversation, this bill is slowly but surely going through congress. Theres also been the revelation that the Senate Intelligence authorization bill that has a provision buried within it where it allows the fbi to read emails through without necessarily obtaining a warrant. And im just interested, because theyre literally simultaneously going through, theyre sitting in, you know, respective in the senate. How do you think this conversation advances moving forward . Because it shows that, you know, its not other over with just this one bill. The policy conversation is clearly evolving all the time. So how do you think regardless of what happens with this bill, this whole conversation, how does it move forward . Guest please. Guest yeah. I mean, i think that the larger question of how does Congress Update the laws to insure the peoples information is protected now that we have all these methods of communication very much beginning. I think that what we saw when you referenced, for example, the senate intel authorization bill and provisions buried deep in that in a closed mark up session where the public didnt have access, i think that is very concerning. What weve heard, we havent seen text of that legislation yet, is that it would allow the fbi to get very, very Sensitive Information without going through a court. You know, the average american would be concerned if the government knew what web sites they visited, whether they went to web sites to get, you know, assistance with a Mental Health disorder, whether they googled the number of a suicide hotline, whether they sought help for Domestic Violence or for a medical condition x. Americans increasingly find this information very sensitive, and they expect that it will be treated with the same protections as, you know, historical information, their address book that they once kept in a desk drawer. And, you know, the concerns you heard expressed by member of congress who sit on the Senate Intelligence committee, the concerns you heard expressed from the public at large, i think, will continue and are strong indication that, you know, those are areas where we need to have more protection, not less. Guest i think its a very good question, and i think the first thing that i would tell you is im very pleased as a Law Enforcement official to see Congress Taking this up and debating it. How does it go forward, how do we move forward with this. First of all, i think the legislature particularly congress, not the state legislatures really needs to take ahold of this situation, update ecpa and continuously over the years look at it. Give you a couple reasons for that. First of all, the providers are scattered all around the country. So, for instance, im based in virginia. But on a regular basis, we request records from google, from facebook, from twitter. And that, of course, requires us to serve process tate process, not federal process all the way across the entire country to california. So this is an area where congress, obviously, has to take the lead and preempt the field, if you will, and make sure there are standards industry wide that explain the process that needs to be issued to get these records and the requirements for responding to them. Furthermore, i think congress is really the moving force on this because the courts are not best suited to deal with this. What i mean by that is courts are retrospective. They look backwards on things. By the time a court takes up on appeal a very complicated trial matter, it could with years after the it could be years after the technologys already evolved before they get to address that issue. A good example yesterday is the Fourth Circuit issuing an opinion in which they, en banc, issued an opinion on cell phone data. Im still contemplating whether we will be seeking search warrants for that, but the point im trying to make is if you read the Fourth Circuits decision, theyre clearly crying out for congress to take the lead. Even the majority opinion they say, look, were not really well suited for this. Congress needs to get involved in this because theyre forwardthinking, and they have a better ability to kind of address this as a holistic whole, if you will. And the final point of that is people like myself, people like ms. Guliani talking about this. Were not enemies. I think people might be surprised i have a much more, i think, forwardlooking view on the warrant requirement than most people would assume a Law Enforcement official would have. However, i do have concerns about the investigative process, and the only way im going to be able to understand her position, shes going to be able to understand my mine is for us to discuss stuff and try to work it out through the process. Host well, neema singh guliani, what is your selling point to Law Enforcement officials . Guest you know, i think were in agreement. This is an issue that Congress Needs to take on, you know . We should not be operating under laws from 1986 to determine how Law Enforcement gets whether its Location Information or whether its emails. And i think that what youre hearing is that, you know, were really not far apart, and i think the bill that came out of the house represents the considerations of, you know, private advocates, Law Enforcement officials, members of congress on both sides of the aisle. And thats why you see unanimous vote, thats why youve seen the support. And i think its really important to mention at a tate level youre already seeing these state level youre already seeing these put into place. As a matter or law or policy, state prosecutors and state Law Enforcement officials are already following these rules. You know, given that i think its time for congress to take a lead on this issue, pass legislation that, you know, seems for all intents and purposes like a nobrainer and legislation that really is needed to provide consistency among all states and among all Law Enforcement officials and companies. Host bryan porter, what is your reassurance to those concerned with Civil Liberties . Guest well, i think one of the things i would say with regards to that is like members of congress or tate assemblies state assemblies, state delegates, state prosecutors at least are elected, and that means i am beholden to the people. And that is true in the city of alexandria. If im engaging in practices that do not meet the approval of the citizenry, you know, ive got to run for reelection next year. Youve got that. Youve also got the fact that i have found in my field we are not, were not anticivil liberty. We ask for some balance so that we have the investigative tools that are necessary to put murderers and drug traffickers and child pornographers away so theyment can harm society, but we are forwardthinking. I know years before the gps tracking requirement came out for a search warrant for putting a tracker on a vehicle, i myself was advising the Police Departments that i deal with and also other state prosecutors at the state level that they needed to get a search warrant before the case came out. Same thing for maybe increasing the standard of probable cause instead of relying on a lesser standard for phone orders with regards to getting peoples historical or realtime location data. This isnt the communicators on cspan. Today a discussion on the nuclear challenges racing the global community. Among the speakers deputy National Security advisor ben rhodes. Our live coverage begins at 9 a. M. Eastern here on cspan2. Now, amy goodman host and executive producer of the democracy now radio show talks about politics, the president ial election, Climate Change and the media. This was part of the annual left Forum Convention in may. This is about 30 minutes. Thank you, thank you. Well, its a really great honor to be here and to be back in new york. We are on a 100 city tour for the 20th anniversary for democracy now . I also want to shout out to my colleagues over there in the back, and the volunteers and interns who are helping out. Democracy now is a joint effort, a joint project, a brain trust of Remarkable Group of reporters and producers and videographers for the last 20 years. We never thought it was going to go beyond nine months. It was the only data election