Transcripts For CSPAN3 Hearing On The Email Privacy Act 20151222

And those are very difficult and challenging things. Its not a large solution to every piece of it. They want to continue to address some of the challenges. I think theres more to be done there. Moving to a different servicer affords a different opportunity and some other tools to be able to move it. There is work to be done there, and nsi extension was certainly part of that, the neighborhood stabilization. And i think its also about treating different buckets of delinquent loans even differently. Selling off decent condition notes is very different than selling a bunch of vacants. We havent seen real different treatment from the bulk sales programs. Going forward, maybe we do trstop that a little bit more. If your fha and servicers cant, or you dont want to do principal reduction, there is this idea that the note buyers getting a discount will be in a better position than economically incentive to do principal reduction. But right now we dont have a requirement that they do that. Similarly, doing a half pra down to 115 might be fine in one area. But if youre in an area where home values are stagnating or still declining, maybe you really want to get that person down to 90 or somewhere else to really make sure modification works. I wanted to thank this panel. I wanted to thank all of you for being here. Thank you. Coming up next here on cspan3, a how judiciary meeting on email privacy, followed by a discussion of bulk collection of telephone data. At 5 45, a hearing on the proposed merger between anheuserbusch and s. A. B. Miller. Tonight on American History tv in primetime, congressional history, beginning with Senate Majority leader Mitch Mcconnell on former kentucky senators happy chandler, earl clements, and thusruston morton. And at 10 30, the history of the Dirksen Senate building. Thats all tonight on primetime, beginning at 8 00 p. M. Eastern. Three days of featured programming this Holiday Weekend on cspan. Friday evening at 7 00 eastern, congressional leaders honoring dick cheney at the capital with the unveiling of a marble bust in emancipation hall. When the Vice President had his critics going off the deep end, as they often did he asked lynn, his wife does it bug you when people refer to me as darth vader . And she said no, it humanizes you. [ laughter ] saturday night at 8 30 eastern, an indepth look at policing in minority communities. Speakers include former st. Louis Police Officer redreddit hudson. Most people get defensive if they feel like youre being offensive. So being very respectful in encounters and request if its not a crisis if its not a dangerous situation, request versus demand. Those things change the dynamics a little bit. And sunday afternoon at 2 00 race and the criminal Justice System with Valerie Jarrett and others. At 6 30, portions of this years washington ideas festival. Speakers include virginia senator mark warner former Vice President al gore and author ann marie slaughter. Weve got to banish the word hes helping at home. Helping is not actually taking the burden off you. You are still figuring out what needs to be done. And you are asking him to help. He is not the agent. Hes the assistant. And if were going to get to where we need to go men do have to be lead parents, or fully equal coparents. For our complete schedule, go to cspan. Org. Arthur brooks discusses his latest book, the conservative heart. How to build a fairer, happier america. The trip believe it or not is the one that should be the easiest, which is to get happy. For any human being who wants to reach a level of integrity honesty and decency as a Long Distance runner youve got to kill something in yourself, fear. Youve got to kill something in yourself. Your obsession with position and status and wealth. Followed at 9 00 p. M. By john danforth, author of the relevance of religion, how faithful people can change politics. Religion does point us beyond ourselves. And for faithful people, the whats in it for me, the me is not central. And then at 10 00 p. M. Senator Claire Mccaskill talks about her book plenty lady like, a memoir about her Life Experiences in government. I dont think we do anybody any favors by trying to dress up politicians as if we are not real human beings that have made major mistakes. And had major problems in our lives. Saturday evening at 7 00, a Panel Discussion on National Review founder william f. Buckley jr. s run for new york city mayor in 1965. At 11 00 p. M. , winston broom discusses the generals, his latest book. One of the first questions i usually ask when i do a tv radio show is why did you choose these three men from the Second World War . My answer is that they embodied, i believe, super characteristics of courage, character and patriotism. On sunday night at 8 00 author david patrusia looks back at a turning point in World History in 1932, the rise of hitler and fdr. At 11 15 p. M. Eastern alisa katz discusses her book the influence machine the u. S. Chamber of commerce. Theres a reason i chose the chamber of commerce as a subject for my book. And its because the Single Organization really summed up the story of how we got here to this place. This Holiday Weekend, watch book tv on cspan2. The House Judiciary Committee recently held a hearing on email privacy with government officials and a representative from google. They took a look at the email privacy act, which would require the federal government to provide a warrant when asking companies to turn over consumers email records. This is just under two and a half hours. Good morning. The Judiciary Committee will come to orderer and without objection the chair is authorized to declare recesses of the committee at any time. We welcome everyone to this mornings legislative hearing on hr699, the email privacy act. Ill begin by recognizing myself for an opening statement. Todays hearing examines hr699 the email privacy act and the need to modernize the Electronic Communications privacy act or eckba. In enacting it nearly 30 years ago, Congress Declared the laws purpose was to achieve a fair balance balance. Reforming this decadesold outdated law has been a priority for me as chairman of this committee, and ive 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 hold this leading proposal in the house 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 in 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. Hr699 at its core establishes for the first time in federal statute a uniform warrant requirement for stored Communications 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 hr 699, which would establish a standard that embodies the principles of the Fourth Amendment and reaffirms our commitment to protecting the privacy interest of the American People. However, our adherence to the Fourth 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 noncontent records is voluntary at the discretion of the provider. It is also wellestablished law that a search warrant must be served at the place where the search or see sure 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. Hr699 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 ensure that they are able to obtain communication for civil violations of federal law. Courts have routinely held that subpoenas satisfy the reasonableness requirement of the Fourth Amendment. Unlike a warrant which is issued without prior notice and is executed without force with an unannounced 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 fourth requirement 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 has 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 Fourth 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 and i look forward to hearing from each of you on hr699 and how to properly balance the privacy expectation 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 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. I would now like to ask unanimous content to enter the following items into the record. A statement dated december 1, 2015 from the department of justice. A letter from the federal bureau of investigation Agents Association dated november 24 2015. A letter from the National Association of Police Organizations dated november 30 2015. A letter from the association of prosecuting attorneys dated november 24 2015. A letter from the Virginia Association of commonwealth attorneys dated july 10 2015. A letter from the Technology Councils of north america dated november 30, 2015. A statement from americans for tax reform dated december 1, 2015. A Coalition Letter signed by tech fredom and other Coalition Members dated november 30 2015. Without objection, the items have been entered into the record. Now its my pleasure to recognize the Ranking Member of the Judiciary Committee, the gentleman from michigan mr. Conyers for his opening statement. Thank you chairman. Members of the committee and our honored witnesses here for the hearing. And those who are in 2141 to participate in the listening of this very important measure. Hr699, the email privacy act enjoys, im pleased to say, the overwhelming bipartisan support in the house. As of this morning, the bill has earned 304 cosponsors. 191 republicans, 113 democrats, and 27 members of the House Judiciary Committee. Now, what do all of these members have in common . First of all we agree that the first of all, we agree that the Electronic Communications privacy act is outdated and provides unjustifiably inconsistent standards for government access to our stored communication. This statute continues to serve as one of the main guarantees of our Digital Privacy but the law was designed in 1986. When few of us used email, and even fewer imagined a world in which we could so freely share information online. The consequences of applying a 30yearold understanding of technology to modern communications are inconsistent at best. For example, the law seems to apply different standards for government access to the same email at different points in its life cycle. When its drafted, when its transmitted, when its opened by its recipient and when it is archived in the cloud. We are not well served by a law whose application is unpredictable and that the courts have had great difficulty in interpreting. Because of the rapid pace of technological change this situation will only get worse if we do not act. Secondly, the sponsors of this bill agree that the government should be obligated to show probable cause before it can provide a before a provider to disclose the content in its customers mail. No matter how old the message is. This standard is consistent with the holding of the 6th Circuit Court in 2010. That case motivated the department of justice to voluntarily adopt warrants for email standard. It also effectively ended the unconstitutional use of subpoenas to compel third parties to produce content in Civil Enforcement actions. Current law requires the government to show probable cause and obtain a warrant only for email that has been in storage for 180 days or less. But the government can use and subpoena for the same email if its stored for one day longer. This is no longer acceptable to most americans. As the 6th circuit rightly observed citizens have the same reasonable expectation of privacy in their email before and after the 180day mark. And as the department of justice testified soon thereafter there is no principal basis to treat email less than 180s old differently than email more than 180 days old. Thirdly, the sponsors of hr699 all agree that current law is not adequate to protect new forms of digital communication. Content is content. Our expectation of privacy does not diminish merely because congress didnt think of the medium when it last visited this statute. The law should protect Electronic Communications across the board email Text Messages, private messages of all sorts and other forms of Digital Information stored in the cloud. Finally the sponsors of this bill agree that we must act without delay. We have an obligation to provide clear standards to Law Enforcement with respect to emerging technologies. We should also recognize that American Businesses cannot sustain these new technologies if consumers cannot trust them. As the Committee Takes up this bill, we should ensure that it does not conflict with the basic notion that the government seizure of our email witp92 a warrant violates the Fourth Amendment. But we should note that this principle has already taken hold across the federal government. The department of justice already uses warrants for email in criminal cases. The government stopped using lesser process in the civil context years ago. In short mr. Chairman and members, this legislation accomplishes two vital tasks. It updates the statute for modern use and it does so without any significant interruption to Law Enforcement. We should all come together on this bill as soon as possible and i want to personally thank the witnesses for being with us today and for their testimony and i urge my colleagues to give this measure their full support. And i thank the chairman. Thank you mr. Conyers. And before we swear in the witnesses, id like to recognize the presence of the chief sponsor of the legislation gentleman from wisconsin mr. Yoder. Thank you for being with us today. Kansas. Kansas. Kansas. The gentleman from wisconsin says hell take you. We welcome our distinguished witnesses today, and if you would all please rise ill begin by swearing you in. If youd please raise your right hand. Do you and each of you swear that the testimony that you are about to give shall be the truth, the whole truth and nothing but the truth so help you god . Thank you very much. May you please be seated. Let the record reflect that the witnesses have responded in the affirmative. Mr. Seresny is the director of enforcement division, prior to joining the s. E. C. He served as the assistant United States attorney in the u. S. Attorneys office for the Southern District of new york where he was a deputy chief appellate attorney and a member of the securities and Commodities Fraud Task force and the major crimes unit. As a prosecutor he handled numerous whitecollar criminal investigations, trial and appeals including matters related to securities fraud mail and wire fraud and money laundering. He is a graduate of Columbia College and yale law school. Mr. Steven cook is president of the National Association of assistant u. S. Attorneys. He currently serves as the chief of staff of the Criminal Division of the u. S. Attorneys office for the Eastern District of tennessee. He has been an assistant u. S. Attorney for 29 years. In this capacity, he has worked in the organized Crime Drug Enforcement Task force and the general crimes section where he handled whitecollar crime fraud and public corruption. He also served as the deputy criminal chief in the narcotics and Violent Crime section. Prior to joining the u. S. Attorneys office he was a Police Officer for seven years in knoxville, tennessee he earned a j. D. From the university of tennessee. Mr. Richard littlehail is the assistant special agent in charge at the Tennessee Bureau of investigation. In addition to his dutys an as investigative supervisor he serves as an adviser and trainer in criminal law and procedure as well as the bureaus chief firearms instructor. Mr. Littlehale is a frequent presenter to Community Organizations on ways to protect children online. Hes active in engaging the Legal Community on better ways to protect children from victimization. He received a bachelors degree from Boden College and a j. D. From vanderbilt university. Mr. Chris calabrese is the Vice President for policy at the center for democracy and technology where he serves as the centers where he oversees the centers policy portfolio. Before he served as legislative counsel at the American Civil Liberties Union Legislative office where he led advocacy efforts relating to privacy, new technology and identification systems. Prior to joining the aclu chris served as Legal Counsel to the massachusetts Senate Majority leader. Chris is a graduate of Harvard University and holds a j. D. From the Georgetown University law center. Mr. Richard salgato is the director of Law Enforcement and Information Security at google. He oversees googles global Law Enforcement and National Security efforts and legal matters relating to data, security and investigations. Previously he worked with yahoo and also served as senior counsel in the computer crimes section of the u. S. Justice department. As a prosecutor he specialized in Computer Network crimes such as hacking, wiretaps denial of service attacks malicious code and other technologydriven privacy crimes. In 2005 he joined Stanford Law School as a legal lecturer on computer crime internet business, legal and policy issues and modern surveillance law. He received his j. D. From yale law school. Mr. Paul rosensweig is the founder of Red Branch Consulting a Homeland Security Consulting Company and a Senior Adviser to the chertoff group. He formerly served in the department of Homeland Security. Hes a distinguished visiting fellow at the Homeland Security studies and analysis institute. He also serves as a lecturer in law at Georgetown University and adjunct professor at the National Defense university, a Senior Editor of the journal of National Security law policy and is a visiting fellow at the heritage foundation. He earned a masters from Scripps Institution of oceanography and a j. D. From the university of chicago law school. Your written statements will be entered into the record in their entirety and we ask that each of you summarize your testimony in five minutes. To help you stay within that time theres a timing light on your table. When the light switches from green to yellow you have one minute to conclude your testimony. When the light turns red, thats it. Times up. And it signals that your time is expired. Am i pronouncing your name correctly . You are. Thank you very much. And you may begin. Good morning, chairman. Good morning, chairman, Ranking Member conyers and members of the committee. Thank you for inviting me to testify today on behalf of the Commission Concerning email privacy act hr699 pending before your committee. The bill seeks to modernize portions of ecpa which became law in 1986. I share the goal of updating ecpas evidence collection procedures and privacy protections to account for the digital age, but hr699 in its current form poses significant risks to the American Public by impeding the ability of the s. E. C. And other civil Law Enforcement agencies to investigation and uncover financial fraud and other unlawful conduct. I firmly believe there are ways to update ecpa that offer stronger privacy protections and observe constitutional boundaries without frustrating legitimate ends of civil Law Enforcement. The s. E. C. s mission is to protect investors, maintain fair orderly and efficient markets and facilitate capital formation. The s. E. C. s division of enforcement furthers this mission by among other things investigating potential violations of the federal Securities Laws, recommending that the commission bring cases against alleged fraudsters and other Securities Law wrongdoers and litigating the s. E. C. s Enforcement Actions. A strong Enforcement Program is a critical piece to protect investors from fraudulent schemes and promotes Investor Trust and confidence and integrity in the securities markets. Electronic communications often provide Critical Evidence in our investigations as email and other message content can establish timing knowledge or relationships in certain cases or awareness that certain statements to investors were false or misleading. When we conduct an investigation we generally will seek emails and other Electronic Communications from the key actors through an administrative subpoena. In some cases the persons emails sought will respond to our requests but in other cases the subpoena recipient may have erased emails tendered only some inserted damaged hardware or refuse to respond. Unsurpriseing unsurprisingly, individuals that violate the law are often reluctant to produce evidence of their own misconduct. In other cases email account holders cannot be subpoenaed because they are beyond our jurisdiction. It is at this point in an investigation that we may in some instances need to seek information from an internet Service Provider also known as an isp. In the proposed amendment would require Government Entities to procure a criminal warrant when they seek the content of emails and other Electronic Communications from isps. Because the s. E. C. And other civil Law Enforcement agencies cannot obtain criminal warrants we would effectively not be able to gather evidence including emails directly from an isp regardless of the circumstances even in instances where a subscriber deleted his emails related hardware was lost or damaged or where the subscriber fled to another jurisdiction. Depriving the s. E. C. Of the authority to get the email from the isp, rims srecipients would be less forthcoming because an individual that knows the s. E. C. Lacks the authority to obtain his emails may thus feel free to destroy or not produce them. These are not abstract concerns for the s. E. C. Or for the investors we are charged with protecting, among the type of scams we investigate are ponzi scheme and pump and dumb market manipulation schemes as well as Insider Trading activity. Illegal acts are particularly likely to be communicated via personal accounts and parties are more likely to be noncooperative. Technology has evolved since ecpas passage and the law ought to evolve to take advances in technology and even when Law Enforcement interests are implicated but there are various ways to strike an appropriate balance between those interests as the committee decides the best way to advance the legislation. Any reform can protect the party an opportunity to participate in judicial proceedings before the isp is compelled to produce the information. When seeking email content from isps in the past the division has provided notice to email account holders keeping in Longstanding Supreme Court precedent. If the legislation were so structured the individual would have the ability to raise with a court any privilege relevancy, or other concerns before the communications are provided by an isp. While civil Law Enforcement would maintain a limited avenue to access existing Electronic Communications in appropriate circumstances from isps. Such a judicial proceeding would offer even greater protection to subscribers than a criminal warrant in which subscribers receive no opportunity to be heard before communications are provided. We look forward to discussing with the Committee Ways to modernize ecpa without putting investors at risk and impairing the s. E. C. From enforcing the federal Securities Laws. Im happy to answer any questions you may have. Thank you. Mr. Cook, welcome. Chairman Ranking Member conyers, and members of the committee, first of all, thank you very much for giving me the opportunity to address you and to give you the perspective of career prosecutors with respect to hr699. And let me get right to it. The importance of the stored Communications Act or sca to the Law Enforcement community simply cannot be overstated. At issue are records of contact and communication by internet and selfService Providers. To understand the importance of these records to the Law Enforcement world id ask you to pause and think for a minute about how these powerful resources are being used in the criminal world. Child predators troll the internet 24 78 for for children. Purveyors of child pornography often with graphic pictures of children sometimes infants being sexually molested sell those images electronically across the internet. Terrorists boast of their horrific crimes posting pictures of those online. And International Drug dealers gangs and others involved in organized crime communicate effectively with coconspirators through emails and texts. When you realize how pervasive this technology is in the criminal world, you quickly realize the evidence covered by the stored Communications Act is central to our ability to solve virtually every type of crime and our ability to access this information covered by the sca and to access it quickly can literally mean the difference between life and death. It can mean the difference between recovering a child alive and returning her to her parents instead of the child being a victim of a vicious predator determined to commit unspeakable crimes. And even beyond the Critical Role of stopping Violent Crimes in progress and rescuing victims, evidence recovered by the stored Communications Act is often central to the search for truth in our courts and our ability to bring those most dangerous in our community to justice. But here are the problems with ecpa and both the Opening Statements by the chair and Ranking Member recognize this. Ecpa and the stored Communications Act were enacted in 1986. That was before much of this technology was in use, before any of us had any idea of its capabilities and to continue to use a statutory framework with definitions that were enacted before any of this technology was known is just simply not workable. It does not fit. That brings me back to hr699 the primary goal of this bill seems to be to codify correctly we would submit, the extension of the Fourth Amendment protections to email in storage, in text in storage over 180 days. This is an issue upon which we can all agree. The bill goes farther, much farther, and we submit a need for a comprehensive and not piecemeal reform. In my written testimony i have addressed a number but by far not all of the concerns we have. Id like to highlight two places where this bill creates or perpetuates limitations on Law Enforcement that far exceed those imposed far exceed those imposed anywhere else in the law, burdens greater than related to the search of a home those greater than the search related to a body cavity. While the email privacy acts compels disclosure of stored email or text the statute does not recognize any of the well established exceptions to the warrant requirement that would be applicable in every other circumstance. Second, the email privacy act imposes notice requirements unlike those found anywhere else in the law. The government has long been required to serve a copy of the search warrant on the person at the property being searched. And that requirement makes sense. It demonstrates to the homeowner or the business operator the authority for the search but that homeowner and that homeowner or Property Owner is then free in the usual course to tell whoever they wish about it. But the government has never been required and the law has never required the government to reach out to third parties and notify them of the search. Its not a discovery provision designed to alert those who are under criminal investigation of the ongoing investigation. And although there are specific in fact, 2 1 2 pages of rules that would control when that could be extended, this simply is a rule that has never been imposed in any other context. In conclusion, just like to say that criminals have, and we have seen that they have unlimited access to these modern and powerful resources, and they make full use of them. For us on the Law Enforcement side to do our job, access to this information is critical. Information covered by the sca has to be accessible to us. That access we respectfully recognize, of course, should be consistent with the privacy protections afforded by the constitution, but congress should not, as this bill proposes, impose new unprecedented and unwarranted limitations that will tie our hands in doing our jobs. Thank you. Thank you mr. Cook. Mr. Littlehale welcome. Chairman, Ranking Member members of the committee, thank you for inviting me to testify. Im a technical investigator in tennessee and i serve on the Technology Committee of the association of state criminal investigative agencies. As you know state and local Law Enforcement agencies work the vast majority of criminal investigations in this country. Lawful access to electronic evidence is critical to us and those cases every day and hr699 in its current form does not sufficiently protect that access. To give you some sense of the volume of potential electronic evidence consider a stranger abduction of a 4dayold infant, we processed and explored leads at a time when every Second Counts my fellow agents and i spent a significant amount of time simply trying to make contact with various providers to declare an emergency, calling and recalling to make sure the process was expedited. We had to process hundreds of leads any one of which could be key to finding the victim. And another amber alert investigation we received a lead that the kreert of a posting on a social media platform may have a lead, when we contacted the provider they noted that ecpas emergency provision is per missive rather than mandatory and demanded Legal Process before they turned over the records. We know hr699 has a great deal of support but we believe much of the support is only on one part of the bill. Advocates for ecpa reform argue that the contents of an email or document stored in the cloud should be subject to the same protections as a letter in your desk drawer at home. Hr6 final hr699 would do that but it goes farther. It has notice requirements and expanded definitions of covered records that would give greater protection for records stored by third party Service Providers than for the envelope in your desk and it would do it without extending tools to obtain evidence in the physical world after we demonstrate probable cause and get a warrant. Like Law Enforcement controlled warrant exceptions and warrant execution timelines. Bringing ecpa into balance should put the physical and Digital Worlds on the same plane and not favor digital evidence over physical evidence. Hr699 should be amended to reflect a balanced approach to assure Law Enforcement can access the evidence it needs and when we get a warrant it should behave like a warrant and not a subpoena with a higher proof requirement. Demonstrating probable cause should allow us to gather evidence with the same timeliness and effectiveness that we would expect in the real world. The notice provisions would require us to describe our case to targets of a criminal investigation even as were pursuing leads that endangers investigations. We also urge the committee to carefully balance the need for notification against the resource burden it places on us. Time spent complying with timelines could compromise Sensitive Information. I urge you to ensure that Law Enforcement can gather evidence reliably and quickly. Ecpa reforms should impose structure on Service Providers response to legal demands. A requirement for Automated Exchange of Legal Process and records with Service Providers would help speed access to evidence, provide transparency and authenticate Law Enforcement process. Warrants under ecpa should look like warrants everywhere else that means that standard exceptions should exist and Law Enforcement should control whether or not theyre invoked just like we can do when executing warrants in the physical world. Everybody agrees that Law Enforcement should have rapid access to Communications Evidence in a life threatening emergency but that is not always the reality. Industry and piracy groups suggest that some emergency declarations are unfounded. Isnt Law Enforcement on the ground the best position to assess the presence or an sense of defensible exigency in a particular case . We already do it in other contexts all the time and theres an existing body of case law in the courts to determine whether or not were correct. In closing, i want to reemphasize how important both aspects of ecpa are to our nations criminal investigators. We agree that ecpa should be updated but any effort to reform it should reflect the original balance between assuring Law Enforcement access to evidence through legal demands and protecting customer privacy. The balance proposed by hr699 goes too far in extending all the burden ss to a much broader range of efforts without the common law exceptions while requiring us to give unprecedented notice to investigative targets because the evidence were seeking is electronic. Thank you for having me today and i look forward to your questions. Thank you. Mr. Calabrese, i think maybe i have your pronunciation correct now. You actually were right the first time its calabrese. But ill take it. Thank you. Im on a losing streak here, but go ahead. Well, thank you, mr. Chairman, for having me testify. Thats the thing we appreciate the most. Ranking member conyers members of the committee, thank you for the opportunity to testify on behalf of the center for democracy and technology. Cdt askis a nonpartisan organizations dedicated to protecting privacy, free speech and innovation online. We applaud the committee for holding a hearing on the Electronic Communications privacy act, ecpa and urge the committee to speedily approve hr699, the email privacy act. When ecpa was passed in 1986 it relied on balancing three policy pillars individual privacy the legitimate needs of Law Enforcement and the support for innovation. The reliance on trusted third parties for longterm storage of our communications have left those communications with limited statutory protections. This void has created legal uncertainty for cloud computing, one of the Major Business innovations of the 21st century and one at which u. S. Companies excel. At the same time information accessible to the government has increased dramatically from emails and Text Messages to social networking posts and photos. Most, if not all, of this information would not have been available in 1986. The technology has changed but the law has not. Creating a major loophole for americans privacy protections. In the face of this outdated statute, courts have acted, recognizing in casing like u. S. V warshack that people have a reasonable expectation of privacy in email and invalidating key parts of ecpa. But that patchwork is not enough on its own. It continues to lag behind technological change and harms smaller businesses that lack an army of lawyers. It also creates uncertainty around new technologies that rely on the use and storage of the contents of communications. Reform efforts face a concerted assault from civil agencies that seek to gain new powers and blow a huge privacy loophole in the bill. Agencies have blocked reform in spite of the fact that the s. E. C. Has confessed to never subpoenaing an isp postwarshack. No less than fbi director comey told this committee that in regard to ecpa a change wouldnt have any effect on our practices. In fact, new civil agency powers would harm the privacy of ordinary citizens. Imagine if the irs had had these powers back from 2010 to 2012 when they were improperly investigating the tax status of tea party organizations. During that investigation the irs sent lengthy timeconsuming questionnaires seeking information on what members were reading, their facebook posts donor lists and copies of the materials they were disseminating. While the irs targeting of conservative groups was limited to the lengthy questionnaires their subpoena authorities were extremely broad and likely could have been used here. If the irs had had the power that the s. E. C. Proposal recommends be granted to all federal agencies they would have been able to go beyond gathering information directly from the target of the investigation. The irs would have been able to go to court and enforce an order allowing them to go directly to the isp and seek the subjects email, while under the s. E. C. Proposal the subject of the investigation would have been able to contest that order in court, civil standards are very low, and its clear that the irs had a very expansive idea of the information they could seek. This type of Agency Overreach is exactly why we cant grant agencies unjustified new authorities. Support for privacy reform is deep and abiding. More than 100 tech companies, trade associations and Public Interest groups have signed on to ecpa reform principles. Signatories include nearly the entire tech industry, span the political spectrum and represent privacy rights, consumer interests and free market values. The email privacy act has more than 300 cosponsors, including a majority of republicans and democrats. Postwarshack a warrant for content has become the status quo. Nonetheless, it is critical for the committee to approve hr699 in order to cure a constitutional defect in ecpa protect individual privacy and assure that new technologies continue to enjoy robust constitutional protections. Thank you. Thank you. Mr. Calabrese and mr. Salgato, welcome. Chairman goodlet Ranking Member conyers, and members of the committee, thank you for the opportunity to appear before you today. My name is richard salgato would you pull your microphone a little closer to you. Sure. Thank you. My name is richard salgado, im director for Law Enforcement and Information Security for google. I oversee the companys compliance with government requests for users data including requests made under the Electronic Communications privacy act of 1986, otherwise known as ecpa. In the past, ive worked on ecpa issues as a senior counsel in the computer crime and intellec intellectual property section in the u. S. Department of justice. Google strongly supports hr699 the email privacy act which currently has 304 cosponsors, more than any other bill currently pending in congress. Its undeniable and unsurprising that theres strong interest in aligning ecpa with the Fourth Amendment and users reasonable expectation of privacy. The original Disclosure Rules set out in ecpa back in 1986 were foresighted given the state of technology back then. In 2015 however, those rules no longer make sense. Users expect, as they should that the documents that they store online have the same Fourth Amendment protections as they do when the government wants to enter the home to seize the documents stored in a desk drawer. There is no compelling policy or legal rationale for there to be different rules. In 2010 the 6th circuit opined in the United States versus warshack that ecpa violates the Fourth Amendment to the extent it does not require Law Enforcement to obtain a warrant for email content. In doing so the 6th circuit effectively struck down ecpas 180day rule and the distinction between open and unopened emails. As irreconcilable with the protections afforded by the Fourth Amendment. Warshack is effectively the law of the land today its observed by governmental entities and Companies Like google and others. In many ways hr699 is a modest codification of the status quo and implementation of the 6th circuits conclusions. Two important developments have occurred before i last testified before the House Judiciary Committee in support of updating ecpa in march of 2013 both of which have a significant bearing on efforts to update the statute. First, the Supreme Court issued a landmark decision in riley versus california where it unanimously held that generally officers must obtain a warrant before searching the content a cell phone seized incident to arrest. Chief Justice Roberts noted that a regime with various exceptions and carveouts would, quote contravene our general preference to provide clear guidance to Law Enforcement through categorical rules, unquote. To reinforce the constitutional imperative for clear rules in this area, chief Justice Roberts concluded his opinion with unambiguous direction. He wrote, quote, the fact that Law Enforcement allows an individual to carry it in his hand does not make the information any less worthy for the protection that the founders thought. Our answer to the question what police must do to a cell phone seized incident to arrest is simple, get a warrant, close quote. The committee is being asked to jettyison the categorical rules that the Supreme Court held imperative in riley. Doing so would undermine the users reasonable expectations to privacy and encroach on privacy protected by the Fourth Amendment. We urge the committee to reject such pleas. Second, many states have enacted brightline rules to bring their state versions of ecpa in line with the Fourth Amendment, hawaii, texas, and maine have all done this. In addition the California Legislature overwhel mengly approved landmark legislation to update californias version of ecpa referred to as calecpa. Not only does it require the government to obtain a warrant before it can compel third party Service Providers to disclose content but it also extends the warrant requirement to communications metadata and data seized stored on electronic devices. States appropriate recognizing that Fourth Amendment protections ought to extend to the cloud. Hr699 represents an overdue update to ecpa to ensure that content is treated like other information protected by fourth. Thank you for your time and consideration. Id be happy to answer any communications you may have. Thank you, mr. Rosensweig, welcome. Thank you very much, mr. Chairman Ranking Member conyers. I appreciate the opportunity to come before you to testify about the email privacy act and the underlying principles of balancing privacy and Law Enforcement needs that are inherent here. As you know i am a former prosecutor, having spent 12 years in various roles throughout government. I then became a Deputy Assistant secretary for the department of Homeland Security with significant responsibility for our counterterrorism efforts. And today i serve i operate a small consulting km inging company and i serve as a visiting fellow at the heritage foundation. From this perspective, i am pleased to acknowledge that everybody on this panel agrees that a warrant requirement for content of email is an appropriate response to changing technology. It seems to me almost beyond belief that notwithstanding the uniform agreement of that principle, we have been unable to work out the details of how to implement that as a matter of statutory law. To my mind, that principle has its roots not in our agreement here, but rather in the longstanding understanding of the privacy of ones personal papers and effects that goes back to the very foundings of this nation. The most famous case of which was the wilkes versus woods case. Wilkes was a protester, much like some of the people in America Today whose papers and effects were the subject of a general warrant. That act by of search by the crown at that time was one of the most salient effects that drove the revolutionary movement. Likewise the writs of assistance case which james otus famously lost unfortunately in massachusetts was what john adams said was the spark that lit the flame of the revolution. Today, email are our private papers. The isps that transmit my email to you are the equivalent functional equivalent of the post office and the Cloud Storage system that i use to store that information is the functional equivalent of the file cabinet in my office. There is no ground that i can see in that is consistent with what the framers understood our personal privacy and papers to be to exclude that information from the full protection of the warrant. And i would add that our history of Fourth Amendment understanding has followed the development of technology by consistently applying that same principle. When the Supreme Court was faced with the idea of telephones in the katz case back in the 1960s they saw that those types of personal communications ought to be subject to the exact same sorts of constitutional protections. This notwithstanding the fact that telephones were unknown to the founders. And over the dissent of justice black, who said, you know history says there are no telephones, its not in the Fourth Amendment, it shouldnt be in the Fourth Amendment. Likewise as mr. Salgado has said weve recently come to understand the cell phones in our pockets are not just telephones, they are Mini Computers that contain the substance of stuff we know and understood. So, too, i would submit with the content of our email communications and our stored data in cloud Service Providers, whether its google or microsoft or yahoo or dropbox. This is where we store our data today. So, whats the debate . Whats left . All that i hear that is left is the application of exceptions that are carveouts and restrictions on this general warrant requirement. And to some degree that has an intellectual appeal to it doesnt it . Because weve had exceptions to the Fourth Amendment for a while, but i doubt thats really what the advocates for the exceptions are suggesting because i certainly have not heard any of them suggest that we should adopt as well the Fourth Amendment suppression rules for when for when evidence is wrongfully collected in violation of these exception requirements. The truth is that weve had no weve had when ecpa was was first passed in the 80s, no exception for an emergency at all. The current statute was added in 2001 post9 11 at the suggestion of the department of justice. So, its kind of passing strange that we would see that exception and expansion of it held out now as a reason to oppose the fundamental changes that are necessary in light of technology. I would submit to you that the time is right for change and the principle is clear. In the normal Law Enforcement context police, fbi Law Enforcement officers should have no more access to stored email than they do to our stored private letters. I would urge this committee to give the bill before you plenary consideration in a markup where the issues can be hashed out and with that i thank you very much. I look forward to answering your questions. Thank you. And well now proceed under the fiveminute rule with questioning of the witnesses, and ill begin by recognizing myself. Mr. Salgado, if congress were to issue a subpoena to google for the contents of a customers emails, would that subpoena violate the Fourth Amendment . I thats a question i would have to look in to as to what the Fourth Amendment how the Fourth Amendment applies to congress, so ive not done enough research to be able to answer that with much confidence. I would say that the changes were talking about today to ecpa would not in any way affect the investigative powers of congress. I think its a very important question however, because if you cant answer that question for me right now, answer this question. Whats the constitutional distinction between congressional and executive subpoenas . Again i probably have to investigate that. The Fourth Amendment is what the Fourth Amendment is, so if it if there is a restriction there thats based on the constitution, that exists regardless of what we do with ecpa. If if the subpoena issued to google for the contents of a customers emails the customer might be a Government Employee who is acting outside of the governments servers and email system and is storing data on googles cloud what ability would the congress have to conduct oversight if your finding is that it violates the Fourth Amendment . I dont know that it would. But i do note that congress would have all the authority it does now to direct the subpoena to the user to get the information directly we would very much appreciate your taking some time to think about the answer to that question because its a very important question with regard to how we address this. Because there either is not a violation, in which case the question arises whats the constitutional distinction between congressional and executive subpoenas, or there is a constitutional violation, in which case the congress ability to conduct proper oversight of the executive branch is a very significant one. Id be happy to answer the question. I dont think it touches on the question of this particular this particular bill but id be very happy to look in to that for you. Thank you. Critics of a civil mechanism cite to the fact that the s. E. C. Has not sought to serve a subpoena on a commercial provider in the five years since the 6th circuits decision in u. S. V warshack. Youve heard some of the criticisms right here on this panel today. They say its not really a problem that needs to be solved because of that fact. Is this true . And if so, why hasnt your agency sought to challenge the warrantonly policy adopted by many providers following warshack . So congressman the decision was made at the time i wasnt at the s. E. C. , but the decision was made in excess of caution not to issue subpoenas to isps without consent of the subscriber. And since ive been at the s. E. C. We have held off on doing that in deference to the discussions that have been ongoing in congress about amending ecpa. At the same time, we have never felt like warshack precluded us from obtaining email under the constitution pursuant to a subpoena with notice to the subscriber. Warshack dealt with a grand jury subpoena with no notice to a subscriber. And it did not undermine a long line of case law that exists that holds that where a subscriber or the party youre seeking an email from or seeking material from has precompliance reviewed before a court that that satisfies the Fourth Amendment. It is true that we have not done it, but i can tell you that there are cases ongoing i know that you havent done it. I want to know why. Right. And that is because in an excess of caution at the time and in deference to these discussions. You know, in deference to the discussions that have been ongoing before congress about the decision of what to do to reform ecpa. From our perspective there are congoing investigations that would definitely benefit from isp subpoenas where weve not obtained email from a subscriber that we do know exist exists but weve not been able to obtain it because weve not been issuing subpoenas to isps. How has that affected your ability to conduct investigations . I think it has affected our ability to ductconduct investigations. All the time there are instances where the individuals either dont produce and before warshack you would then issue a subpoena to a third party holder of those emails, is that correct . Thats correct. And since then you havent felt the need to attempt to do that and have the courts clarify this issue . Which now the congress is being asked to clarify. Weve felt the need but we have in deference to the ongoing discussions in congress about reforming ecpa determined not to do that. But we certainly have identified cases where it would have been helpful to do that to our efforts. All right. Let me ask one mr. Question to mr. Littlehale, in addition to serving the warrant on the customer hr699 also requires Law Enforcement to provide notice to the customer of the nature of the Law Enforcement inquiry with reasonable specificity. Is Law Enforcement required to provide such information to a person when they serve a search warrant on their home . What is the harm if Law Enforcement is required to from the subject of investigation of the nature of the Law Enforcement inquiry with reasonable specificity . [ inaudible ] turn your microphone on, please. Sorry, mr. Chairman. In traditional search warrant practice, the requirement is simply that Law Enforcement leave a copy of the warrant on an inventory of items seized in the premises to beer is searched and an entity that is in possession of evidence we serve a copy of the warrant on them and we give them notice of the fact that were requiring them to produce the records. Hr699 imposes an additional set of requirements that we actually discuss something about the nature of our investigation that goes beyond whats required in traditional search warrant practice. Thank you very much. The gentleman from michigan mr. Conyers, is recognized for five minutes. Thank you, mr. Chairman. Before i begin my questioning, id like to ask unanimous consent to introduce a statement from the gentleman from colorado mr. Jared paulus his views are worth consideration by the committee. Can i get a unanimous consent request approved . Without objection, will be made a part of the record. I thank you. Let me begin my questions with chris calabrese. Im trying to find out why this bill is so popular from your point of view. The email privacy act, 304 sponsors. Privacy advocates civil libertarians support it. Former prosecutors, fortune 500 companies and Small Businesses across the country. More than 100,000 americans have signed a petition urging the white house to support this measure. How come . Well i think that americans believe very strongly in the values that underpin this nation, that fundamental idea of privacy and a balance between what government can do and having rules around how they can do it. All this bill does is the very modest step of bringing our privacy protections into the 21st century. And everybody agrees with that. A recent poll in the Washington Post said that 86 of americans supported reform. This panel is unified in saying that we need a warrant for email. Now, we have some minor issues around the edges, but honestly, i believe that this is a bill that would Pass Congress or pass the house of representatives by 300 or 400 votes. It is that it is that popular. It is that common sense. I think we need a markup. We can work out some of these issues around the edges, and the American People can get the privacy protections that they want and they need. Thank you. Thank you. And also in your testimony, you mentioned that the bill faces a concerted assault from civil agencies that seek to use statutory changes as a tool to gain new powers. Some argue the powers are already on the books. Why do you refer to the s. E. C. s proposal as a request for new powers . I think that if you dont use an authority for five years and there is questionable legal theres a questionable Legal Standard about whether you can use it at all, its new authority. Thats simply put. It simply cant be that you have this existing authority and you say its incredibly valuable but youve held off on using it for five years. Either what youre doing is in your investigations arent important, which we all know is not true or you dont think you have this authority. And to me there are really no other options, and i think that this is a new authority. Thank you. Mr. Rosensweig, the government often conducts parallel criminal and civil investigations to the same target. What would be the practil consequences if we adopted a warrant standard for email and criminal investigations and some lesser standard for those in civil investigations . There would be the risk that the exception would swallow the rule. I spent much of my earlier career prosecuting environmental criminal cases. A regulatory area where the civil regulatory authorities had civil and administrative powers for securing evidence. There was a set of procedures parallel proceeding procedures, that were internal to the executive branch that governed the circumstances under which those civilly collected evidence could be transferred to the criminal prosecution side for use in a criminal case. Those rules were simply rules of grace at the discretion of the executive branch. They were not statutorily mandated and they were not expressed in any constitutional limit. There would be at least some risk that in an effort to evade the warrant requirement that was created by reform of ecpa criminal authorities would solicit the securing of that evidence through civil process under a lesser standard. I do not mean to ascribe illmotivation to anybody on any part of this process but nonetheless, the pressures are very real. Let me squeeze in one final question here. The 6th circuit in warshack held that to the extent that the stored Communications Act permits the use of subpoenas to compel the production of email, the statute is unconstitutional. Given that holding is the mechanism proposed by the s. E. C. Also unconstitutional . Anybody want to try that in addition to you . I think it likely is. It hasnt been tested in court. There are there is a history of restricting civil authorities when for constitutionally protected material. Theres also frankly, some law that points to things called administrative searches that might be seen as a validation of the s. E. C. s position. If i were to judge it i would probably say come down against it, but nobody makes a lot of money predicting the Supreme Court. Could it withstand a Fourth Amendment challenge in the courts, do you think . I would say no but all right. Thank you so much. Thank you, mr. Chairman. Thank you mr. Conyers. The chair now recognizes the gentleman from wisconsin mr. Sensesen bren sensesenbrenner. Since the warshack decision, the s. E. C. Has been unable to subpoena email content from Service Providers. Ive read your testimony and listened to it, did you write it in 2009 . No. I wrote it okay, well, thank you very much. Now, if the s. E. C. Cannot currently subpoena email content from Service Providers, is it truthful to testify that hr699 becomes law the s. E. C. Will be denied the ability to obtain evidence . I dont agree that were not able to do it currently. We have refrained from doing it in a deference to congress ongoing discussions about it okay. I guess you kind of ignored the warshack decision on that. Now, even under ecpa as it was written almost 30 years ago, the s. E. C. Could only subpoena email content after it was older than 180 days. Arent you asking this committee to expand a Legal Authority that was found unconstitutional in the more limited form . We are not. I think its then why arent you . Because you would like to be able to issue subpoenas on email content thats less than 180 days old . We would defer. If congress decided no, no, no, no no no. You know, i the thing is that i think the court has decided, and youre not happy with the Court Decision and what youre what your testimony says is that youd like to expand something thats already been held unconstitutional. I disagree. Warshack was i disagree with you. Now, let me ask the whole panel just to ask yes or no. If Congress Gives civil agencies the authority to subpoena email content to Service Providers, would that law be constitutional . I think youve already said yes. Can i get a yesorno answer from the other five panelists. Id love an opportunity to explain. Im limited on time. Yes or no, please. My answer is yes, it would be constitutional. Mr. Littlehale . Yes it would be. Mr. Calabrese . I believe no it would not be. Mr. Salgado . I believe, no, it would not be. Okay, mr. Rosensweig . No, thats what warshack said. I think weve heard from mr. Seresny, mr. Cook and littlehale, since you believe the law would be constitutional, how do you square that position with the 6th Circuit Courts holding in warshack . The critical holding is one that the s. E. C. Has already drawn, the issue at subpoena there was the grand jury subpoena. One issued with no notice to anybody. The Fourth Amendment to the United States constitution as we all know has never imposed a warrant requirement without any other without any exceptions or without any other way to meet the reasonableness clause. Mr. Littlehale . Congressman, i believe that the due process provided by the s. E. C. Proposal is offers a significant amount of protection, the same sort of protection contemplated by the Fourth Amendment, and i believe that the courts would view that as sufficient protection. Well you know, the issue is is that a subpoena you know, there cant be a motion to quash a subpoena until its served. So, even if there is an immediate motion to quash a subpoena isnt there the risk of a constitutional violation here . Congressman, there isnt. Thats because our subpoenas are not selfexecuting. If we want to enforce our subpoena, we need to go to a court and compel production. Okay. Okay. Well, except that warshack seems to indicate the opposite. Well, you know the thing is is that here were having to balance the fact that apparently the position of Law Enforcement is that they want to expand what is currently the law. Enforcement is that they want to expand what is currently the law. And the position of those who are privacy advocates say the law is the law and codify it. I think that this is a slam dunk for congress to make a determination because we already have something that everybody seems to think is okay, except a few people that would like to expand the dragnet. With that, i yield back. The gentle lady from california, ms. Cochran, for five minutes. Thank you, mr. Chairman. Im glad we are having this meeting here today as mentioned at the beginning of the hearing, over 300 members of congress are sponsoring the legislation. So it hasnt been a close call for most of us. There is a competing not a competing bill, but a bill that encompasses the provisions. And this bill also goes to geo location. And im wondering, mr. Cook, the doj recently enacted a policy requiring a warrant before deploying a cell site similar like a stingray to locate a suspect using their cell phone. Does your association support that policy . The answer to that, of course, is yes, that use of a stingray or trigger fish cell site simulator under certain circumstances would trigger Fourth Amendment protections. That is to say, either a warrant or one of the exceptions and there are many occasions where Law Enforcement uses a stingray and it does so under the emergency aid or in circumstances, et cetera. If you support this absent the circumstance exception, which we are not arguing against, would you consider that a warrant for any means of obtaining geo Location Information should also be a favorably supported thing by your group . I dont understand. For example, you dont need a stingray to actually identify where a person is with the cell phone. But the identification would be the same. So wouldnt that logic extend to that . When we seek tracking of a suspect, as was the case in jones and ongoing tracking then the Fourth Amendment is implicated and i think jones solved that for us. I think it did as well. Shouldnt that same logic apply . Thats a great question. As i can tell you youre fully familiar with the courts struggling with that issue the fourth and fifth circuit and other courts. So part of the division, i think, is driven by an understanding of technology with respect to some Location Information. Its just not as specific as gps tracking. And with respect to that the courts have recognized that i dont want to run out of time. Assuming that the Technology Issues are resolved and its not the u. S. Attorney agencies job to do that logically, shouldnt the Fourth Amendment apply to Historical Records as well as perspective records . The other longstanding doctrine to touch on that is the one the courts pointed to, the smith and miller Third Party Records doctor. Which has also been not favorably received by congress recently. Let me ask you, mr. Delgado, because we have approached this whole issue from the point of the Fourth Amendment and the constitution and the right to privacy and the like. But it also has an impact on American Business. The most Important Technology companies in the world are located in the United States. I would like can you comment on the impact if any, on American Business for a perception in other countries that privacy is not secure if you use an american product . Thank you. Yes, i can certainly easily burn up the rest of your time with an answer to that question. It is a Significant Impact on american industry that theres a perception outside of the United States. Europe its no secret, certainly holds this perception that data held by the u. S. Company is somehow there for the taking from the u. S. Government. This bill, the email privacy act, is getting rid of that perception to make sure our statues protect what the Fourth Amendment offers. If i can you may not have the answer to this. And certainly this is not just an issue for google or facebook and all the isps and microsoft and ireland and the like. Has anybody added up the dollars at risk to the u. S. Economy on this issue . That may have been done. I need to get back to you. Its not on the tip of my tongue to be able to answer that. Thats fair enough. I would like to just mention that the chief justice conclusion in riley versus california is, quote, our answer to the question of what a policy or police must do before searching a cell phone, seize incident to arrest is accordingly simple. Get a warrant. How does that decision apply to the legislation that were considering today, in your judgment . I think it illustrates the point that the Supreme Court wants us to have bright rules so that the Law Enforcement officer in the field knows what to do. And when were talking about the Fourth Amendment and our right to privacy, were not messing around with gray areas. That we recognize the significance of this right to americans, we recognize significance to the privacy interest. We have clear rules. And rules should be to default to a warrant. Thank you very much. My time has expired, mr. Chairman. The gentle ladys time has expired. The chair now recognizes the gentleman gentleman, mr. King. Thank you, witnesses, for your testimony. First it was mentioned that theres a general agreement among the panel, i believe, and others that exempt for a few people who would like to expand the dragnet. I would ask mr. Cook and mr. Littlehale, is there anything in this bill that expands the drag net . Mr. Cook . Well, so im troubled by the characterization. Let me kevin drag define dragnet so that you dont have to. Is there anything in this bill to expand your ability to do investigations and maybe makes innocent citizens more vulnerable . No, sir. I think the bill narrowly in fact, expansively limit ss Law Enforcement to do their job. Thats my understanding of it as well. Mr. Littlehale . Yes, congressman, i share that concern. And you would say and share the characterization of mr. Cook as well . I believe that the bill imposes additional limitations on traditional search warrant practice and even if the standard approved governing in records as contemplated in the bill, we will have Less Authority with respect to those records than we would with warrants and records in the physical world. Yes. Thank you, gentlemen. Ill turn to mr. Delgado. Thinking of this from the google perspective, when i or a citizen sign up for an email account, theres a long agreement thats there that i have to confess i have not studied that or had my attorney look that over. But i say, okay, i agree and sign up for my email and glad to have the service and it works really good. Am i, in that, waiving some protection to privacy in that agreement . Well, not with regard to what were talking about here. The agreements certainly talk about how we use the information and where we might be needing to disclose it in order to provide the service, so it is meant to describe to you and those interested in knowing these things what is happening. With regard to what is happening with the Fourth Amendment. Well honor search warrants. Will you honor subpoenas . We honor subpoenas but not for content. We honor subpoenas for what it says. It is our preference to let users know when we get these requests unless we are informed by a gag order, for example, that we are not able to. So we will honor all of those rules that congress has set in place and that the Fourth Amendment has established. We will honor the waiting time for Law Enforcement to get a search warrant, which would take time. Are you aware of isps similar to what is being described here . There could be slight no, sort of the pattern that im describing is one that Larger Companies here operate under. Then practice is pretty close to the mirror of this act were discussing, or the legislation were discussing . Yes, sir. I think thats right. Im not aware of providers producing content on anything less than a subpoena at this point. I would burn more time on that. I appreciate your response. I believe you gave the clearest definition of modern electronics versus the Postal Service from the constitutional the founders era. This is still the constitutional era. And i would put it this way. Isp equals post office. Emails equal your filing cabinet. Is that an accurate description of yours . Isps equals post office . Yes. That would be my summary. Or stored emails equals letters in my filing, right. Yeah, stored emails. So could i have the right to, if i had an isp provider to say will you waive your authority . Will you hand that over to an isp provider i could do that willingly, couldnt i, understand the constitution and current law . Oh, you couldnt consent to anything provided your consent is voluntarily and not coerced. Right. You could you dont if the police come to your door and say can i get the letters in your file cabinet, you dont have to require a warrant. You can say, sure come on in. Then youre familiar with california versus greenwood . Yes. And so the distinction between warshaw and california greenwood, if you take your garbage out to the curb its not protected by any Fourth Amendment right. If i delete my emails and theyre within the custody of an isp and ive waived my right to privacy, that would be open access, then, to the investigators . I would say no, but i would have to think about that. My sense is that when i delete the email, im intending not to throw it to the curb as garbage but rather to eradicate its existence all together. Im aware of the fact that a copy is kept maybe but i dont think im aware. So this is actually where were getting to where we need to go with this panel, i think, a distinction between greenwood and warshaw on what those emails consist of. Are they garbage or arent they . Are they subject to subpoena or arent they . So i appreciate the panels time today. And i yield back the balance of my time. At this time the gentle lady from michigan. Thank you, mr. Chair. I want to thank the chair for holding this hearing and for all of you to take time to be here with us today. Mr. Stresney, do you dispute the preservation of court orders and court interference and forced administrative targets of the sec investigations . Should the email privacy act pass . Do you think if the email privacy act passes that you will continue to have the availability of preservation orders and court interference to enforce administrative subpoenas . I believe thats still something that one could obtain under the proposed statute. But then we have to obtain the emails from isps when the individual doesnt provide them to us. So you said in your email that target emails would be destroying evidence. Are you telling this committee that the email privacy act would be to blame if you dont take the common sense step of issuing a preservation order on an isp from day one of the investigation. Is there any reason whatsoever you wouldnt take that very simple step, which could be directly by the s. E. C. Without a judges involvement . We would certainly take that step but then the preservation doesnt allow us to obtain the email from the isp. Certainly we would try to preserve the email and make sure its available. But then the next step that is obtaining it from the isp that would not be available. So your comment that this would lead people to delete emails, if the preservation order, the information will be able to be saved there. But if the person deleted the email and then we subpoenaed the person, they wouldnt have it. The only entity to have it would be the isp. If you have a preservation order then the isp will preserve that information. But if we preserve it we cant obtain it. I dont know about you. But i use email to keep in touch with my family my husband, my friends back home in Washington State all across the country. And im pretty sure everyone else in this room and building would tell a similar story. As email has gone mobile its virtually indistinguishable from a phone call or text message and no doubt contains very Important Information of peoples lives stored in the cloud. And we would all hope that it be kept safe from intruders or prying eyes. I find it highly disturbing in your testimony today to suggest the s. E. C. Views email Service Providers more like a witness or informant that you should be able to tap directly for information as opposed to the digital home of intimate communications. So, let me ask you this. If the s. E. C. Wants a box of documents sitting in a targets home, can you use an administrative subpoena to bring a locksmith to their home to open the door walk in and take documents . We cannot. So then please explain to us why you think we should give you the ability to do exactly that with the digital equivalent, how that could possibly comport with simple expectations of privacy and due process and, without a shred of Meaningful Evidence from you so far or anyone else, that the lack of this authority would have any impact on your ability to carry out investigations whatsoever. We view the isp storage much as a hard documents in a Storage Facility. Where hard copies are kept in a Storage Facility, we could go to that Storage Facility with notice to the person who uses that Storage Facility and try to obtain those documents by a subpoena. That, i think is the analogy that we would draw that would be under these circumstances. From our perspective, we have instances in the past when we did issue isp subpoenas where we could show that we obtained significant evidence in investigations for that purpose. As to the last number of years, we havent used it, we dont know what but certainly our investigation we have lost. Is on i want to get your view mr. Calabrese, on this in terms of the role of the thirdparty provider being in the home of the personal communications. Its clearly our digital home. You would find much more Sensitive Information about me in the cloud than you honestly would in my house at this point. If you wanted physical documents they are much more sensitive. The thing i would like to point out that we havent really touched upon here, the standard for accessing information in the civil context is very low. Its mere relevance. Its not a High Standard of probable cause. Also a number of things that a predicate that, an agency has, simply misfilling out your taxes, for example is much greater than criminal predicate force a warrant. Much greater standard, much greater number of ways we can access information. That means were potentially opening up the cloud to much greater invasion by civil agencies, even than we would by criminal agencies. And i think thats exactly backwards. And if you would give me a couple of more seconds, mr. Chair, you talked about cases can you give me the specific names of those cases . We have a number of cases and we are happy to provide it to your staff. That includes accounting fraud case. Insider trading case where email contained a tip. A microcap fraud case where the email showed control of corporations. Just one last thing to answer mr. Calabreses point, we would be fine if congress established a probable cause standard as the standard we would have to meet. Whatever standard congress would like to establish for us to have to meet we are fine meeting that standard. What we need is some mechanism in instances where an individual does not produce to us email and has deleted it or otherwise destroyed it. And i think weve already discussed that right now with post warshak, you never needed that authority. My time has expired. Gentle ladys time has expired. The gentleman from texas the chair will recognize. Thank you mr. Chair and to all the witnesses for being here. For anyone that can answer, if someone deletes an email that he or she has already sent out, would the isp be able to retrieve that at some point . I would be happy to try answering that. It may vary from company to company. In most cases i think its fair to say that there would be some short period of time between the point of deletion and when the system purges the content thats been deleted. So there would be some period of time. That time period may vary from provider to provider. Couldnt it be retrieved from the person to whom it was sent . It certainly could. So there may be many communicants involved. Thats right. Im not a cosponsor at this time even though im one of the persons proudest of the work that kevin yoder has done to get this bill to this point. I think its fabulous. I think its important. My concern has been that weve left a provision that page ten, for example, that allows the Government Entity to apply for a court order so that they can still not inform the individual. And thats fine to my mind if theres a question of endangering the life or physical safety of an individual like a child that was talked about, flight from prosecution. As a former judge ive signed all kinds of felony warrants but ive made sure that there was probable cause and i made sure that there was particularity in the description, in the affidavit as well as in my warrant. And i felt very comfortable in 05 and 06 when the Bush Administration was assuring us we would never use the National Security letters for anything unless there was someone who actually had contact with an International Terrorist or terrorist organization. Those type of things. And then we find out by july of 2007, there were potentially thousands of abuses with where basically there was no case. They just sent them out. And im surprised to hear this from me but in the new york times, theres a good article talking about nicholas merrill. How he fought to disclose the contents of the nsl. Then we also, with the disclosures of snowden yes, he committed an act of treason. But he also exposed lies by the last administration and this administration. When i saw the order, the affidavit and order regarding verizons disclosure of all of their metadata, i realized we were lied to by both administrations about what was being sought. We were told that, look, you dont have to worry, theres a fisa court date, confirmed judicial nominee thats a federal judge. Theyll protect the constitution. There was no particularity at all, just give us everything on everybody you got and the judge just signed. Oh, okay. You want everything . Heres everything. I couldnt believe it. So im not just as comfortable with providing the exception that im sure was demanded by governmental entities. And im wondering if an excuse of destruction or tampering with evidence or intimidation of a potential witness is enough to get an order saying we can avoid informing whoever sent the email or whoever should have possession of the email. We dont have to inform them if were concerned they might delete the emails. Really . Well that would always be a concern. So you could always, always, always get some judge somewhere that would sign off on that order. I know that now after seeing the disclosure about snowden. So im not comfortable that this is really going to be that helpful because of that massive gaping hole. On page 11, it says that basically the provider would have the burden of notifying the government at the end of the exclusionary notice time. The provider has the burden of notifying the government. My time is about up, so im going to notify the subject of the warrant so that the government can there should be no burden on the provider to do that. If the government wants to keep that secret, the government should try to extend it. But im not sure that it wouldnt be extended automatically, virtually in every case. You say we always protected mans documents and shouldnt change that because its in a cloud. I would agree, but the isps require we check a box that says these documents arent yours anymore, they are mine. And im wondering if maybe we should have some legislation that tells isps, you know what these documents really are the property of the person that created them, not the one who holds or provided the safe to put them in. The gentlemans time expired. With the witness answering. I care to respond. Well, i would respond by sharing your concern about the delayed notification for provisions, especially the destruction of evidence portion of it. I think that other portions, the risk of physical injury, harm, those are very good. I would point out that 2705 was added in the immediate aftermath of 9 11 as a codification of a longstanding common law that had developed in the courts of appeals that had adopted these various rules for when they would delay notification. So to some degree, youre arguing with something that preexisted 9 11, preexisted destruction of evidence has been one of those possibilities. That shouldcould be something that should change. For control of ones personal data in the cloud, i think that there are many Service Providers who offer different degrees of control over your information. And so i generally tend to be comfortable with the idea theres competition in the marketplace and that if thats something that matters to you, there are Service Providers who will promise that they take no interest and will not process or examine your data. They could be more costly in other ways than Service Providers who provide you but im kind of a marketist on that one. The chair now recognizes the gentleman from cicely. Thank you mr. Chairman. Thank you to our witnesses for sharing your expertise and your diverse perspectives today. I believe all of us assembled here, both those of us on the committee and the assembled pattern of witnesses recognize Technology Evolves much faster than the law. This, in part, is a testament to the american privacy of protections for americans and is no surprise to me that it is broadly supported by the American People. I want to begin with you, mr. Sesney. In your written testimony you say if the bill becomes law without modifications, the s. E. C. And Law Enforcement would be denied the ability to obtain Critical Evidence from isps. This suggests that youre engaged in some activity today to be blocked by this legislation. So do you use information from the isp and providers . We do not where we need consent. Why not . Deference to discussions going on in congress for a number of years, we determined not to use ecba. But that doesnt believe that it is unconstitutional to use it. But you do not currently use it . We do not, without consent of the subscriber. Your written testimony also acknowledges that s. E. C. Often conducts themselves on probable cause, what prevents the s. E. C. From helping the government to avoid a warrant requirement by sharing my email requirements with the fbi . The first point is whatever standard congress establishes were willing to abide by. Even if it is probable cause. But second when we issue subpoenas wait a minute. So if the standard is probable cause your objection is not to the standard but who makes the determination of probable cause . Because a probable cause finding with a judicial determination is a warrant. No, but were seeking authority to achieve a court order with notice to the subscriber to provide additional protections to a warrant. A warrant is ex parte. The subscriber doesnt have the ability to object. But we are seeking an authority to obtain a warrant from the subscriber with the ability to provide objections and whatever objections they are. That would be ex parte. But to answer your question about the criminal authorities, any subpoena or other order we seek would be in advance of our investigation. It would not be at the behest of criminal authorities. We do not issue subpoenas or otherwise seek warrants. Do you want to respond to that, mr. Calabrese . Yes. I think what weve not heard an answer to is probable cause of what . Probable cause in context of a crime is pretty clear. We know what crimes are, and theyre interpreted very tightly. Violations of civil law rch broader. If i fill out my tax form incorrectly or i state this is a business expense when it was maybe a vacation, you can say i have probable cause to believe by going through my emails im going to find out he was on vacation, not on a business trip. So what we really are talking about no matter what is a much broader access to americans content of communication. With respect to the current law, the government must show probable cause to the content of of an email that has been stored by a provider for 180 days but can use lesser process for an email stored for 181 days. Is there consensus that this 180day rule is inconsistent with how we use emails today . Should it be eliminated . And, in addition to that, your written testimony, mr. Calabrese, you give a good list of the Digital Content we all store online. Emails, Text Messages photographs, music passwords, calendars and other forms of social network. Do these merit forms of protect under the current amendment and is there any privacy issue in this information . I certainly think the court in warshak believed that all forms of communication should be protected. My worry is that we dont know what the next new technology is going to look like. We dont know the next way to keep our Communications Private and confidential is. So we shouldnt be waiting. And theres no suppression remedy. So these determinations dont come up all that often. We shouldnt be waiting for five or ten or 15 years for a court to find a strange case that allows them to say we have a reasonable expectation of privacy and communications. We all seem to agree that the content of communication should be protected by a warrant. Congress should codify it. I yield back my time. The chair recognizes the gentleman from texas. Thank you, mr. Chairman. Thank you, yall, for being here. As my friend, mr. Gomert was, i used to be a criminal court judge in texas for 22 years. Felony cases, 20,000 cases or more. All that time constantly i had Law Enforcement officers come to me with a request for me to sign a search warrant based upon their affidavit. And i signed it a lot and some i did not sign because of the basics of the Fourth Amendment. The Fourth Amendment makes us different than every other country on earth. Because of our history, its uniquely United States history that goes back to the british who wanted general warrants to kick in doors of warehouses in boston to see if the american colonists were storing demon rum that hadnt paid taxes on yet. To me a general warrant is the same as a court order. So we have specific warrants and i signed a lot of them. It makes no sense to me that the right of privacy is protected for six months but its not protected more than six months. Send a letter, snail mail. And i put that in an envelope and send it off to one of my grandkids somewhere. It floats around in america from post office to post office and who else knows where. Until it gets to grandson. Its protected. Generally, its protected. Its a form of communication. When we use emails or store in the cloud, its a form of communication wherever the cloud may be. So i think its Congress Responsibility to determine what the expectation of privacy is. Its not, god bless him, federal judges responsibility, its Congress Responsibility to say this is an expectation of privacy for americans. And when we entered the digital age, i dont buy the argument, well, we are in the digital age, you have to give up some of your constitution rights so we can have government investigate things whether its civil investigation, whether its criminal investigation. I dont buy it. Because the Fourth Amendment gets in the way of that. I think it is one of the most important rights that they have. So its our duty to set up a standard. Over 300 members have signed on mr. Yoders bill. Hasnt come up for a vote. We filed a similar bill in 2013. I want to get a vote on mr. Yoders bill. 304 members of congress agreeing on something . Really . And i think most members, republicans and democrats, see the importance of privacy. Mr. Calabrese, let me start with you. I have a lot of questions and only have five minutes. The warshak case, the s. E. C. Lost the with warshak case. They did not appeal that, did they . No, the case was not appealed. It was not appealed. The way i get it, the s. E. C. Wants to carve out civil investigations. The way i see this legislation, its to protect us from the s. E. C. , the irs and the epa. Because without this legislation, they could keep doing what theyre doing. Would you like to comment on that, weigh in on that . Civil agencies snooping around in emails. And im using the word snoop as my word. We have already seen Agency Overreach. We saw it in this tea party investigation. There was no question that there was improper investigation that was searching for a much broader category of information on people than anyone here was comfortable with. The idea of looking at what people are reading, looking at their donor list as part of their civil investigation into someones tax status is wrong. And it disturbs me that if someone has a high relevant standard thats so low that we might bring those kind of investigations into play, i think thats a problem. And i think that thats why we need to limit this very powerful authority to warrants that are supervised by judges under probable cause. Judge, may i respond . Not yet. You can respond in writing because i have the same question for all six of you. The basis of a search warrant also requires there be notice under the current law, lets use the s. E. C. Or lets use the irs. I like to use them better. They can do their investigation their snooping. And the person being investigated doesnt know about it. Is that correct, mr. Calabrese . It depends on the circumstances. Sometimes notice is delayed. Notice is delayed. Sometimes notice is delayed, sometimes they do know, though. But would you agree it is part of our fundamental fairness under the Fourth Amendment that theres a search warrant, the search warrant is executed and that there is a return to the judge of what was seized or not seized and eventually whoevers house was searched or property or property was searched, they get notice of the results of the search warrant . This is one of the most the gentlemans time has expired but the witness can answer. This is one of the most invasive things that the u. S. Government or any government can do to its citizens, it can investigate them. They can be the subject of Law Enforcement scrutiny. So yes, absence of some compelling reason not to notify them, they need to know if they are under government scrutiny. I have questions to submit for the record, mr. Chairman. You have been given permission to submit as many as you want. And we should get the southern rule if were from the south, we ought to be able to get to talk longer than five minutes. We have a better way of expressing ourselves. With that, the chair recognizes the gentle lady. Thank you, mr. Chairman. Let me thank the witnesses. I want to engage in a give and take with mr. Calabrese and mr. Selegado and mr. Rosen let me thank all of you for your service and acknowledge the warshak case. Mr. Seresny, i will not attribute your win or loss. I will just take the case as a circuit case. I just want to ask, since that case the warshak case mr. Cook, do you know whether or not the department of justice has used anything less than a warrant based on probable cause to compel a Third Party Provider to produce the contents of communication . Do you all adhere to that . Yes. Let me move on then that was easy, thank you. Thank you. To say that i come to this with a sense of trust of government, not to sense that government is unworthy and consistently trying to undermine its citizens, but im adherent to the Fourth Amendment and its value and its value with the founding fathers. So let me engage the three of you. One, im going to go to you, mr. Rosensieg, to make it clear that any issues dealing with terrorism and any elements thereof are specifically and appropriately excluded under this legislation. Are you comfortable with that . Very much so. If indeed thats part of the ground from at least my personal view that this legislation is appropriate, given the post9 11 changes that have empowered our National Security apparatus to protect us in ways that i think are appropriate, its important to exclude from the coverage of this bill those issues. And i think thats something we can agree on. And rather the construction provision that is in section six of the bill is perfectly appropriate to that end. I think it is important to make note of that. Im on Homeland Security as well. America is obviously on alert. But weve always said since 9 11 that we would not allow fear to instruct and guide our interpretation of the constitution. I want to go to mr. Selegado. Mr. Calabrese, there was a law school yale with the same name. Do you have any sadly, i dont. I had his class, but youll be favored by your very name. But let me engage both of you in the question of the value and sanctity of the Fourth Amendment and whether or not in this interpretation of this bill, which i understand so many of us are on the bill, but 100,000 petitions are sent to the white house to support it, whether it is an obstruction in terms of preventing Law Enforcement from doing their job. Can you all just engage, mr. Calabrese will start and mr. Selegado can finish. I dont believe its an obstruction. We are codifying amounts to existing practice and protections under the Fourth Amendment. We are also saying that you should have noted when someone does a search of your most private electronic home. And to be clear, unlike a physical warrant where you get that notice immediately, were actually delaying notice for ten days here so that Law Enforcements got a head start. Absolutely. And thats our and then were allowing a gag provision which says that in important circumstances youll never get that notice. I think these are all pretty basic protections for anyone. And honestly, if there are issues around the edges, im not sure that there are, but if there are i think thats why we have markups so we can bring these issues forward we can take votes on whether theres anything here that we should be concerned about and then we can get this bill to the floor. Thank you, mr. Selgado. I, too, served as a judge. I think there should be a comfort i had a responsibility to the Police Officer and also to the citizens to be able to inquiry what the basis of this warrant was. That layer was placed in my hands. I think the American People place their protection in our collective hands. What do you think . What is your perspective on that . And maybe you want to answer that you are not hindered by the present sixth circuit interpretation. I agree with that completely. The role of the neutral and detached magistrate proves to be a significant one. Its something that really sets america apart from a lot of countries and gives us a layer of protection to make sure that well meaning but perhaps poor judgment in some cases is overridden by the cooler judgment of a magistrate who doesnt have a particular interest in a case. Its significant for Fourth Amendment. Its no accident thats the standard for valid warrants. Quickly, thank you. Mr. Sernesy do you want to comment on that, as mr. Yoder sits in the room on pins and needles wondering how we are going to treat this bill . The time has expired but you may answer. I couldnt agree that it is important to have a role for a judge in the situation to provide objective views on the matter. Thats why the order we are proposing would be before the judge with notice to the subscriber. And the subscriber could bring to that judge whatever objections they have to our seeking the email. And thats actually the remedy that were seeking in this case. We would try to obtain that email from the subscriber. If we couldnt, then we would go before the judge to obtain the order and the judge would be the objective fact finder to determine whether we met the standard. Mr. Chairman, i like the bill and i am listening to the gentleman but i look forward to this bill going to markup. The time is expired. Now we recognize mr. Marino. Thank you, mr. Chairman. My question sheer is directed to mr. Rosenseig and mr. Selgado, in that order. Speak to the trends of users with encrypted services often hosted overseas in order to seek privacy and how this might make us less safe if we had than if we had a clear framework in place. Do you understand my question . I do understand your question. Um, i think to begin the answer, obviously, the encryption discussion is slightly different than the one we are having now about the lawful access to content. What i would say about the encryption discussion is that it is essentially a reflection of the exact same impulse, which is that people are seeing increasingly the lack of privacy in their personal effects and papers in their i like the idea of a digital home, their electronic home and to the extent that this congress does not take steps to protect that privacy by law, the encryption is essentially citizens engaging in selfhelp and protecting themselves with their own, um, capabilities. I would say that from my perspective, encryption is an idea. Its a mathematical truth. Its not suppressible. So, if we do not regularize access through things like the proposal before you, that will provide comfort to citizens, they are going to engage even more, i think, in self help. Mr. Selgado . I agree completely with that statement. The point in the question about the movement of users to services overseas, i think thats a natural consequence of the misimpression that u. S. Government is has such easy access to the data of providers, its not true and this bill will help make it clear and will help prevent the fleeing of users to other Services Based on this misperception. Thank you. Mr. Cook and mr. Littlehale, i have 18 years Law Enforcement behind me, prosecution, state and federal level. And as far as i am concerned, what i have seen here since i have been in congress and this is only my third term, the less federal government in my life, the better. What nsa has done, the irs, and there are many more that we can get into, the overreaches and what i think criminality taking place in these agencies. Been a Law Enforcement guy, prosecuted many child abuse case and pornography cases, if the two of you could quickly tell me what the obstacle is to you and how we can fix that, because i know in some investigations that i had, i didnt want the person who was looking at and transferring and uploading and downloading child pornography to know at this point in my investigation that he was the target or she was the target. Could you please respond . And im concerned that weve lost sight of that issue and the exgen or emergency aid exception issue, if i could just begin with that. The concern that we have is many of these investigations, whether its child pornography or any other type of investigation, many fraud investigations involve dozens, sometimes hundreds or thousands sometimes in child pornography cases of targets. For us to get the content and then have to let the target of the investigation know is is is a New Discovery requirement that puts the targets, whether its terrorism or otherwise, on notice that we are looking at them. Its unprecedented. I have said that, unprecedented in our law. How do we whats the change that we can make . And mr. You go and then collectively tell me what the changes are that you would like to see. Thank you, congressman. If all we were interested in is extending and leveling the Playing Field for the 180day rule and content, the bill would be one page long. The notice provisions you are talking about along with the additional protections the bill provides are one of the great reasons we are concerned about it, while i certainly think we would like to have a conversation, think those are a little bit more than issues around the edges. Thats a the body of our concern about the bill is that when we get a warrant, we want it to mean something. Thats true at earlier point with respect to encryption. You know, if i serve a search warrant on somebody, i want to have access to that evidence. Many instances, now i dont. I want to find that evidence in other places. And if its denied to me because of delays or because of burdensome notice provisions those slow me down, make me less effective as an investigator. And i believe this committee should undertake robust review of what this bill is going to do. Okay, my time has run out. Would the two of you please put in writing and get it to me what you think could be a remedy for this . And anyone else who wants to address that as well. Listen, i am just as much a Fourth Amendment advocate as i am putting these people behind bars and i wish i i dont no one should have look at the photos of the kids that ive looked at and youve seen over the years and question as to why we need to have some delay before letting that person know that they are going to be arrested. And i yield back. Thank you. The gentlemans time has expired. Thank you, mr. Chair. Thanks for the witnesses, for your presence here today. I would like to follow up on my discussion with the gentleman from the great commonwealth of pennsylvania. I know you expressed concern ss as it relates to the notice requirement and i think in your testimony, you referred to the provisions as a red alert tool that could notify an individual that he or she is under investigation. Is that right . Yes. And if you could just kind of walk me through a series of responses it relates to the particular concern you have as to it is my understanding that section four permit up to ten days of delayed notice is that right . Thats correct. Is it your view that ten days inadequate . In our discussions already, we have drawn parallels with the Fourth Amendment as it applies in other context and everybody seems in agreement that thats the goal, to make the bill parallel Fourth Amendment protections but this bill does more than that and heres why. If you for example, if you have terrorists working out of an apartment, a third partys apartment, and there is evidence in that apartment, we get a search warrant, search that apartment theres no obligation for us to tell the terrorist that we have gotten evidence out of that apartment that can be used against them. Right, but this bill doesnt necessarily impose that obligation. Its a default provision, but there are steps that the government can take under exigent circumstances. I wouldnt think that it would be a sound Public Policy to create a law that simply applies in the instance of the terrorist context. This is a country of 300 plus Million People that value their privacy rights. Theres got to be an appropriate balance between the legitimate ability of Law Enforcement to help keep us safe and prosecute wrongdoers to the full extent of the law and the civil rights and Civil Liberties of american citizens, is that correct . As an email user, i could not agree more but i think that the Fourth Amendment has already reached that balance because in the analogy that ive given you, when we search that third partys home or Service Provider, that homeowner or Service Provider is within their rights to contact whomever they want to notify them. Theres never been an obligation for the government to figure out who the evidence is going to be used against and to notify them. Thats why i say this is unique in the law and ive never seen it before. As it relates to the ten days delay, if the government concludes that additional delay is warranted, this bill, correct, provides for a court to make that determination that the notice can be delayed indefinitely, is that right . Not indefinitely. Theres 180day limitation and then theres a recurring obligation to reach back to the court. Right. But after that 180day period expires, the government can go back to the court and request another 180day delay, is that correct . That is correct. There are narrow limitations on it. For example, one of the limitations is that no if we can show that there would be harm to another individual, but there are many times when the harm could be to a community rather than an individual. I wish i could report to you that all judges are reasonable and will always in the right circumstances limit that new new statutory notice rule but the truth is that that just isnt how it works. Expanding these obligations on the government will come with great risk and serious cases. But there are times that an article three judge can reasonably or magistrate, an article three judge or magistrate can reasonably disagree with the government as it relates to privacy protections and potential overreach. Is that correct . Of course there is. And there are times when this agreement will result in notification to under this newly created rule to targets of criminal investigations and alert them, to allow them to flee or otherwise destroy evidence or otherwise engage in bad behavior. Mr. Calabrese, could you speak to the adequacy of this notice requirement, in your view . I believe its a very strong notice requirement and constitutionally appropriate, with the very strong delay procedure. One of the things thats i have been struggling with a little bit is we are talking about a circumstance where i am going before the judge and getting a search warrant. At that same time, i may get a delay of that search warrant. So, we are not talking about some kind of separate process where ive got to go through an additional burden. When i get the warrant, i can also make the case that i must delay notice. That could happen for 180 days, before a provider or anyone else, you know, notifies the subject, they have to tell the government they are going to do that, giving the government the ability to go back to the court and saying, you know what . Our reasons for the delay have not ended and we need to expand it. I think it is a very reasonable, very balanced approach that supports a fundamental constitutional value, one of notice thats embedded in the Fourth Amendment. Thank you. I yield back. Gentlemans time has expired. This time, the chair recognizes the gentleman. As former u. S. Attorney, i will always appreciate and listen to concerns expressed by Law Enforcement whenever Congress Proposes changes to a law that may impact your ability to do your job because youre the folks that are working so hard to keep us safe. And i want to certainly make sure you have the tools and resources and capability necessary to do that effectively. That being said, i also strongly believe that in in an increasingly connected, complex, digital society, our laws have to be modernized to make sure they reflect the current technological landscape. As our technology is evolving, this extremely personal information being scored on our computers, own our smartphones, on our fit bits, where we travel, what we read, where we shop, who we communicate with, make sure we have robust protections in place for that. I certainly dont believe that the Fourth Amendment protections that we all hold so dear and the needs of Law Enforcement are mutually exclusive and i appreciate all the witnesses being here today to have a thoughtful discussion about that. Mr. Seresny, i want to start with you. From my perspective, it seems like the s. E. C. Has been the most vocal civilian agency in expressing concerns about modifying ecba. The s. E. C. Doesnt appear to have served a subpoena on a commercial provider in five years, since the rorschach decision and despite that the s. E. C. s annual report last year, 2014, um, touted a record year, cuttingedge Enforcement Actions, more cases than ever before, a number of firstever cases that span the securities industry. And i know that chairman white has testified that the s. E. C. Isnt issuing subpoenas to thirdparty Service Providers for content. So, given the Record Number of cases, Enforcement Actions and firstever cases brought by the s. E. C. All done without encroaching on Fourth Amendment rights of americans, why is the s. E. C. Asking congress to give it the authority to get content on something less than a warrant . We certainly have been successful, we think, in enforcing the Securities Laws, but that does not mean there arent cases that would benefit tremendously from emails we would be able to obtain from isps. I guess the point i would assert is the Fourth Amendment is not violated by what we are proposing which would be an order before a judge, which a judge could issue, with notice to the subscriber after the subscriber has the opportunity to raise whatever objections they have under a standard the congress would establish and from our perspective that does comply with the Fourth Amendment and it also balances privacy protections because would you have an objective factfinder reviewing the situation and determining whether it is appropriate for us to obtain emails in that circumstance. And i can tell through are ongoing investigations now which we have refrained from seeking those emails from definitely benefit from such emails. When you say what you are proposing, i mean, how have you been proposing it . We have had ongoing discussions with members of congress about these issues for the last couple of years. Okay. Well, because, you know, from my perspective, it seems like you have been altering your behavior for the last few years in response to this opinion rather than coming to a committee of jurisdiction, at least from my perspective. I know that when i know that when fbi has a problem, they come and let us know what it is and how we can fix it. We have been having ongoing discussions with the staff of both judiciary, senate and house judiciary throughout this period. Certainly since i have been at the s. E. C. , which has been [q fair enough. Thanks for that. Mr. Salgado, in your testimony im paraphrasing here but you seem to be saying that hr699 is really just a codification of the status quo under rorschach. Is that right . Thats accurate, yes. Okay. You dont think that hr699 goes beyond the holding in rorschach . I dont think it does. Happy to hear suggestions but my review of rorschach and the bill suggests they are very consistent. Mr. Calabrese, you agree with that . I do. I think so. I havent checked precisely, though. Im going to yield. My times about expired. So im going to yield back the balance of my time. Thank you all for being here. The gentleman yields back and the chair recognizes himself for questions. Mr. Salgado you brought up the emergency disclosure mechanisms. Mr. Littlehale, in his written testimony, said they are voluntary. He mentions companies are often in his words unable or unwilling to respond to Law Enforcements demands in a timely manner. I think we would agree that true emergencies are there and as the son of a Georgia State trooper, i understand. It seems to be implying theres something missing here. So we did a little bit of