the legislation we're considering today in your judgment? >> i think it illustrates the point that the supreme court wants us to have rules so the law enforcement knows what to o do. we're not messing around with gray areas. that we recognize this right to americans, the privacy interest. that we have clear rules, and the rules should be to default to a warrant. >> my time has expired, mr. chairman. the chair recognizes the gentleman. >> i thank the witnesses for your it testimony. first it was mentioned that there's a general agreement among the panel and others that would like to expand the dragnet i would like to ask mr. cook and mr. littlehail does anything expand the dragnet? mr. cook? >> well, so -- i'm troubled by the characterization. >> let me define dragnet so you don't have to and that would be, is there anything in the bill that expands your ability to do investigations and maybe makes innocent citizens more vulnerable? >> no, sir. i think it limits in a couple of unprecedented ways for law enforcement to do their job well. >> mr. littlehale? >> yes, i express that concern. >> you share the characterization of mr. cook as well? >> i believe the bill imposes additional imitations on search warrant practice and if the category of records as contemplated in the bill is given, we will have less authority with respect to those records than with warrants with records in the physical world, yes. >> thank you. i thank both gentleman. to mr. salgado, when i or a citizen sign up for an e-mail account, there's a long agreement that's there that i have to confess i have not studied that or had my attorney look over and i agree and sign up for e-mail and am glad to have the service and it works really good. am i in that wavering some protection to privacy in that agreeme agreement? >> well, not with regard to what we're talking about here. the agreement certainly talks about how we use the information and where we might be needing to disclose it in order to provide the service so it's meant to describe to you and those interested in knowing these thin things. we will honor search warrants. >> we honor subpaenas? >> we do for what aspsubpoena a for. unless we are informed by gag order, for example, that we're not able to so we have honor all of those rules that congress has set in place and the fourth amendment has established. we also will honor requests to preserve information while law enforcement goes through the effort of getting a search warrant which may take a period of time. >> are you aware of any isps that have a different policy than you're describing here with google's? >> there may be slight differences in how the product works but, no, generally i think the pattern i'm describing is one that certainly the larger companies here operate under. >> then practice is pretty close to the mirror of the actuary discussing, the legislation we're discussing? >> yes, sir. i think that's right. i'm not aware of providers producing content on anything less than a subpoena at this point. >> so i would burn more time on that but i would appreciate your response and i would like to turn to mr. rosenzweig. you gave a definition on electronics versus the postal service from the founders' era. this is still the constitutional era. isp equals post office, e-mails equal your filing cabinet. is that an accurate description of yours? >> isps -- yes, that would be my summary or stored e-mails equals letters in my filing cabinet. >> stored e-mails. and so could i have -- could i have the right, too, if i had an isp provider who said we want to waive -- will you waive your authority -- while i waive my constitutional protections and hand that data over to an isp provider, i could do that willingly under the constitution and current law? >> oh, you couldn't consent to anything. providing it's voluntary and not coerced. you don't -- if the police come to your door and say can i get the letters in your file cabinet? you don't have to require a warrant. you can say, sure, come on in. >> you're familiar with california vs. greenwood? >> yes. >> and so the distinction here between warshack and california vs. greenwood which is essentially if you take your garbage out to the curb it's not protected by any fourth amendment right. if i delete my e-mails and within the custody of an isp and i waived my right to privacy, that would be open access then to the investigators? >> i would say no but i'd have to think about that. my sense is that when i delete the e-mail, i'm intended not to throw it to the curb as garbage but rather to eradicate its existence altogether. if i'm aware of the fact that a copy is kept maybe but i don't think i'm aware. >> we're getting where we need to go with this panel, i think, the distinction between greenwood and warshack on what those e-mails consist of, are they garbage or are they access to an investigator by subpoena or by a warrant or aren't they? i appreciate the panel. i thank the chairman and i yield back the balance of my time. >> at this time the gentlelady from washington state, ms. delbene. >> i want to thank the chair for holding this hearing and for all of you taking the time to be with us today. mr. ceresney, do you dispute the preservation orders and court interference to enforce administrative subpoenas on targets of s.e.c. investigations, should the e-mail privacy act pass? >> if the question is whether preservation requirements should be contained in the statute and the ability to obtain from a subscriber, should that also be required -- >> do you think if the e-mail privacy act passes, do you think that you're going to continue to have the availability of preservation orders and court interference to enforce administrative subpoenas? >> i believe that is still something that one could obtain under the proposed statute but what that wouldn't allow to us do is then obtain the e-mails from isps when the person doesn't provide to us. >> you've argued one problem with the e-mail privacy act would be that it leads targets of investigations to delete e-mails thereby destroying evidence. so are you telling this committee the e-mail privacy act would be to blame if you don't take the common sense step of issuing a preservation order on an isp from day one of an investigation. is there any reason whatsoever that you want take that step, that very simple step which can be done directly by the s.e.c. without a judge's involvement? >> we would certainly take that step. the problem is the preservation doesn't then allow us to obtain the e-mail from the isp. certainly we would do that, try to preserve the e-mail and make sure it's available. then the next step would not be available. >> so your comment that this would lead people to delete e-mails doesn't really hold water if you have a preservation order the information will be saved there, so -- >> if a person deleted the e-mail and then we subpoenaed the person, they wouldn't have it. the only entity that would have possession would be the isp. >> if you have a preservation order, then the isp is going to preserve that information. >> if they preserve it and we can't obtain it. >> i don't know about you, but i use e-mail to keep in such with my family, my husband, my friends back home in washington state, all across the country, and i'm sure everyone in this building would tell a similar story as e-mail has gone mobile, it's virtually indistinguishable from a phone call or a text message and no doubt contains very important details of people's personal lives. stored in the cloud that we hope would be kept safe from prying eyes. i find it disturbing in your testimony that the s.e.c. views e-mail service providers more like a witness or an 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 target's home, can you use an a 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 come port with expectations of privacy and due process. and without a shred of meaningful evidence from you so far or anyone else that this -- that the lack of this authority will have any impact on your ability to carry out investigations whatsoever. >> we view the isp as a third party storage provider like an iron mountain provider would be for hard copy documents that are kept in a storage facility and if in the circumstance where hard copy 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 the documents by a subpoena and that, i think, is the analogy that we would draw that would be appropriate in these circumstances and from our perspective we do have instances in the past when we did issue an isp subpoena where we could show we obtain significant evidence in investigations for that purpose. as to the last number of years when we haven't use d it, we don't know what we have lost but -- >> i want to get your view, mr. calabrese, on this in terms of the role of people's communications. >> 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 than my house. the thing i would like to point out that we haven't touched on here is the standard for accessing information in the civil context is very low. it's relevance. it's not a high standard of probable cause. also the number of things that predicates a civil agency has, misfilling out your taxes are much greater than the criminal predicates for a warrant. we're talking about a much lower standard, much greater number of ways that we could access information that means we're opening up the cloud. i think that's exactly that. >> and mr. ceresney, just a couple 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'd be happy to provide to your staff including an accounting fraud case where an e-mail indicated someone was using earnings management, an insider trading case where it contained a tip it, a fraud case where the e-mail showed control, and one last thing to answer mr. calabrese's point, we would be fine if congress established a probable cause standard as a standard that 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 e-mail and has deleted or otherwise destroyed it. >> i think we've already discussed right now with post-warshack you never need that authority, so my time has expired. >> the gentlelady's time has expired. the gentleman from texas is recognized. >> i thank you for being here. for anyone who can answer, if someone deletes an e-mail that he or she has been sent out, could the isp retrieve that at some point? >> i'd be happy to try to answer that. it may vary from company to company. in most cases it's fair to say there would be some short period of time between the point of deletion and when the system purges the content that's been deleted so there would be some period of time -- that time period may vary from provider to provider. >> couldn't it be retrieved from the person to whom it was sent? >> it certainly could. there may be many communicants. >> i'm not a co-sponsor at this time even though i am one of the persons proudest of the work that kevin yoder has done to this point. i think it's fabulous. i think it's important. my concern has been that we've left a provision on page 10, for example, that allows the governmental entity to apply for a court order so that they can still not inform the individual and that's fine to my mind if there's a question of endangering the life for physical safety of an individual like a child, like was talked about, flight from prosecution as a former judge i've signed all kinds of felony warrants, but i made sure there was probable cause and i made sure there was particularity in the description in the affidavit as well as in my warrant. and i felt 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 i think july of '07 the ig said there were potentially thousands of abuses where there was no case. they sent them out. there was a discussion about nicholas merrill, how he fought to disclose the contents of the nsl. snowden committed an act of treason but when i saw the order,ed affidavit and order regarding verizon's disclosure of all of their -- we will return to this hearing in a minute. right now live to hear from attorney general loretta lynch about the shootings in san bernardino, california, yesterday. we have a lot to talk about and a lot to do. we have a lot going on. let me echo mr. jarrett's words about the tragic events in california yesterday. just before we move on to that. the department of justice dispatched the fbi the bureau of and we continue to work closely alongside our state and local law enforcement partners who are working so hard on the scene and its aftermath. and let me assure you that as this investigation unfolds we will be offering any and all assistance necessary to the local authorities and to the people of san bernardino who have been so profoundly affected by this unspeakable crime. and let me simply say whatever the results of this investigation, we don't know a lot right now. violence like this has no place in this country and in this nation. [ applause ] this is not what we stand for. this is not what we do. this is not what we work for. it's not what we live for. i don't have any operational updates for you at this time. those will come later from the local authorities who are on the scene. but i do want to express not only my deepest condolences but also ask that you join me in standing with our colleagues, our friends, our partners in san bernardino who are suffering with this and add all of our thoughts and prayers to them at this time. along with them and the brave public safety officials. so i thank you for that moment of silence and all of you for your continued support as we move forward with this investigation. now of course today's announcement is a matter of equal seriousness but of long-standing concern and i'm really pleased -- >> some brief remarks by attorney general lynch on the san bernardino shootings. we'll it continue with our hearing on e-mail privacy. >> should have some legislation that tells isps, you know what, these documents, they really are the property of the person that created them, not the one who provided the safe to put them in. >> the gentleman's time has expired but the witness may answer. >> i would respond by saying i share your concern about the delayed notification provisions especially the destruction of evidence portion of it. those are very good. i would point out that in the immediate aftermath of 9/11 as a codification of a common law that had developed in the courts of appeal that have adopted these various rules when they would delay note fication so to some degree something that pre-existed destruction of evidence. as for control of one's own personal data in the cloud, i think that there are many service providers who offer different degrees of control over your information. i generally tend to be comfortable there's competition in the marketplace and if that's something that matters to you there are service providers who will promise that they take no interest and will not process, will not examine your data. they may be more costly. i'm a free marketist on that one. >> the gentleman's time expired. >> thank you to our witnesses for sharing your expertise and diverse perspectives today. all of us assembled here, on the committee and our assembled pam of witnesses recognize technology evolves faster than the law. this is a testament to american innovation but it also prevents a gap that must be addressed and the e-mail privacy act represents an important step to closing this gap and preserving privacy protection for americans and it's no surprise to me that it is broadly supported by the american people. i want to given with you, mr. ceresney. you state if a bill becomes law without modifications the s.e.c. and other civil law enforcement agencies are denied the ability to obtain critical evidence from isps. this phrasing suggests to me you are engaged in some activity today that would be blocked by this legislation. and so my first question is does the s.e.c. currently use subpoenas to objecontain from internet providers? >> we do not where we do not have consent of the provider? >> why not? >> in an excess of conference and in deference to the discussions ongoing in congress for a number of years, we determined to hold off on using that, but it does not mean we believe we have the authority under the statute and that it is constitutional to use it. >> but you do not currently use it? >> we do not without consent. >> your written testimony acknowledges that the s.e.c. and i quote often conducts investigations in parallel with criminal authorities. if the fbi needs a warrant to obtain my e-mail but the s.e.c. can obtain with something less than probable cause, what prevents the s.e.c. from helping the government to avoid a warrant requirement by sharing my e-mail contents with the fbi. >> the first point is whatever standard congress establishes we're willing to abide by even if it's probable cause. second, when we issue subpoenas -- >> then your objection is not the standard but who makes the determination of probable cause? because a probable cause finding with a judicial determination is a warrant. >> no, what we're seeking is authority to achieve a court order with notice to the subscriber which provides additional protections to a warrant. a warrant is ex parte and there is no ability to object. with a we're seeking is an authority to obtain with notice to the subscriber and the subscriber would have the ability to object and provide whatever objections they have whether they be relevance, privilege, that provides addition al protections beyond those of the warrant which is ex parte. 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 otherwise seek evidence. we do it to advance our own investigation. >> mr. calabrese, did you want to respond to that? >> the question we haven't heard an answer to is probable cause of what? probable cause of a crime in the criminal context is very clear. we know what crimes are and they're interpreted very tightly. violations of civil law are much broader. if i fill out my tax form incorrectly or state this was a business expense when maybe it was a vacation, you can say, oh, i have probable cause to believe that by going through my e-mails, i'm going to find out he was on vacation and not on a business trip. what we are talking about, no matter what the standard is, is a much broader access to americans' content. >> and with respect to that current law provides the government must show probable cause to obtain the content of an e-mail stored by provider for 180 days but can use lesser process for an e-mail stored for 181 days. is there consensus this 180-day rule is inconsistent with how we use e-mails today should it be eliminated? and in addition to that, mr. calabrese, you give a good list of the digital content online, e-mails, text messages, music, pass words, calendars and other forms of social network. do these merit protection under the fourth amendment and is current law adequate to protecting this information? >> i think the court in warshack believe the fourth amendment should extend to all of these types of communication. my worry is we don't know what the next new technology will look like. we don't know the next way we'll keep our communication s privat and confidential is. we shouldn't be waiting and there is no suppression remedy. these determinations don't come up that often. we shouldn't be waiting for 5, 10, 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 the content should be protected by a warrant. >> thank you. i yield back. >> the gentleman's time has expired. the chair recognizes the gentleman from texas, mr. poe. >> thank you, mr. chairman. i thank all of you all 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 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. it's uniquely united states history. goes back to the british who wanted general warrants to kick in doors of warehouses in boston to see if the british american colonists were storing rum they hadn't paid taxes on yet. to me it's the same as a court order. so we have specific warrants. i signed a lot of them. it makes no sense to me that the right of privacy is protected for six months but it's 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, who else knows where, until it gets to grandson. it's protected. generally it's protected. it's a form of communication. when we use e-mails or store in the cloud, it's a form of communication. wherever the cloud may be. so i think it's congress' responsibility to determine what the expectation of privacy is not federal judges' responsibility. it's congress' ability to say this is an expectation of privacy for americans. when we enter the digital age i don't buy the argument, well, we're in the digital age. you have to give up some of your constitutional rights so we can have governments investigate things whether it's criminal investigation. i don't buy it. the fourth amendment gets in the way of that. it's our duty to set up a standard. over 300 members have signed on mr. yoder's bill. it hasn't come up for a vote. ms. lofgren and i offered up a similar 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 i only have five minutes. the warshack case, the s.e.c. lost the warshack case. they did not appeal that, did they? >> no, the case was not appealed. >> the s.e.c. wants for civil investigations, the way i see this legislation it's to protect us from the s.e.c. and the irs. and the epa. without this legislation they could keep doing what they're doing. would you like to comment on that? civil agencies snooping around in e-mails and i use the word snoop as my word. >> we've already seen agency overreach. we saw it in the tea party investigation. there was no question there was an improper investigation searching for a much broader category about people than anyone, i think here is comfortable with, looking at what people are reading, looking at their donor list. it's wrong. and it disturbs me that if someone could have a relevant standard but so low we might bring those investigations into play, that's a problems and why we need to limit this powerful authority to judges under probable cause. >> 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 requires there be notice under the current law. let's use the s.e.c. or the irs. i like to use them better. they can do their investigation, their snooping and the person being investigated doesn't know about it. is that correct, mr. calabrese? >> it depends on circumstances. sometimes notice is delayed. >> notice is delayed? >> sometimes they do not know. >> would you agree it's part of our fairness under the fourth amendment that there is 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 eve eventually whoever's house was searched or property was searched they get notice of the results of the search warrant? >> the gentleman's 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. investigate them. yes, absent some compelling reason not to notify them i think they absolutely deserve to know if they're the subject of scrutiny. >> i would like to ask consent to submit questions for the record. >> as many as you would like, judge. >> and we should get the southern rule if we're from the south, be able to talk longer than just five minutes. >> we have a better expressing ourselves in the slow southern execution. with that the chair recognizes the gentle lady from texas, ms. sheila jackson-lee. >> i want it to engage in a give and take with mr. calabrese, mr. rosenzweig, if i might. let me thank you all for your service and acknowledge the warshak case. mr. ceresney, i will not attribute your win or loss. i will just take the case as a circuit case. 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 comments of -- contents of communication. do you adhere to that? >> yes. that was easy, thank you. >> i've come to this with a sense of trust of government, not that government is unworthy and consistently trying to undermine citizens but i am an adherent to the fourth amendment and its value and the value to the founding fathers. let me engage the three of you. one, to you, mr. rosenzweig, to make it clear that issues dealing with terrorism and any elements thereof are i inappropriately excluded under this legislation. are you comfortable with that? >> very much so. if indeed that's part of the ground for at least my personal view this legislation is appropriate. given the post-911 changes that have empowered us to be protected in ways i think are appropriate, it's important to exclude from the coverage of this bill those issues and i think that's something we can agree on and the construction provision that is in section 6, i guess it is of the bill, is perfectly appropriate to that end. >> i think it's important to make note of that. i'm on homeland security as well. we've said since 9/11 we would not allow fear to instruct and guide our interpretation of the constitution. i want to go to mr. salgado. i know of someone with the same name. >> sadly i know. >> i had his class. let me engage both of you in the question of the value and the sanctity of the fourth amendment and whether this interpretation of the bill i understand so many of us are on the bill but 100,000 petitions are being sent to the white house to support it, whether it is obstructionist in terms of preventing law enforcement from doing their job. can you engage? mr. calabrese can start. >> i don't believe it is obstructionist. we're codifying what amounts to existing practice and existing protections under the fourth amendment. we're also saying you should have noticed when someone does a search of your most private electronic home. unlike a physical warrant where you get the notice immediately we're delaying notice for ten days here so law enforcement has a head start. >> absolutely. >> and then we allow a gag provision that says in certain circumstances you'll never get that notice. i think these are all pretty basic protections for anyone. honestly, if there are issues around the edge, that's why we have mark-ups to bring these issues forward. we can take votes on whether there's anything here to be concerned about and then we can get the bill to the floor. >> thank you, let me say i, too, served as a judge and did a lot of pc warrants for police officers and i think there should be a comfort. i had a responsibility to the police officer but also to the citizens to be able to inquire what the basis of this warrant was. that layer was placed in my hands. i think the american people place in our hands. what is your perspective? you may want to answer you are not hindered by the sixth circuit. >> i agree completely. the role of the magistrate in american jurisprudence is a significant one, at that really sets america apart from a lot of countries and gives us a larp of protection to make sure that well meaning but perhaps poor judgment is overridden by the cooler judgment of a magistrate who doesn't have a particular interest in a case. it's no accident that is the standard for valid warrants. >> quickly, thank you, do you want to comment on that as mr. yoder sits in the room on pins and needles wondering how they're going to treat his bill? >> the gentlelady's time has expired but you may answer. >> it's important to have a role for a judge in the situation to provide objective views on the matter and that's why the order that we are proposing would be before a judge with notice to the subscriber and the subscriber would be able to bring before that judge whatever objections they have to our seeking the e-mail and that is actually the remedy we're seeking in this case. we would go before a judge and try to obtain an order and the judge would be the objective fact-finder to determine whether we met the standard. >> i like this bill but i'm willing to listen to the gentleman. i look forward to it going to mark-up. >> the chair now recognizes the gentleman from pennsylvania. >> my question here will be directed to mr. rosenzweig and mr. salgado in that order. please speak to the trends of users moving to encrypted services often hosted overseas in order to seek privacy and how this might make us less safe if we had a clear framework in place. do you understand my question? >> i do understand your question. to begin the answer the encryption discussion is slightly different than the one now about the law ful access to content. the encryption item is it is essentially a reflection of the same impulse, 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, electronic home. to the extent congress does not take steps to protect that privacy by law, it is citizens engaging in self-help. i would say that for my perspective it's an idea, a mathematical truth. if we do not regularize access like the proposal before that you will provide comfort to citizens, they'll engage even more in self-help. >> mr. salgado? >> i agree completely with that statement and i think to the point in your question about the movement of users to overseas, that's a natural consequence of the misimpression that u.s. government is -- has such easy access. it's not true and this bill will help make it clear and will help prevent the fleeing of users based on this misperception. >> mr. cook and mr. littlehale, 18 years law enforcement behind me, prosecution. state and federal level. as far as i'm concerned what i've seen here since i've been in congress, and this is only my third term, the less federal government in my life, the better. what the nsa has done and the irs and many more we can get into, the overreaching and what i think the criminals that's taken place. being a law enforcement guy, prosecuted child abuse and pornography cases, if you could quickly tell me what the obstacle is to you and how we can fix that. i know in some investigations i didn't want the person who was looking at and transferring and uploading and downloading child pornography to know that he or she was the target at this point in my investigation. could you please respond. >> and i'm concerned that we've lost sight of that issue and the emergency aid exception issue. so if i could just begin with that. the concern we have is many of these investigations whether it's child pornography, fraud investigations involve dozens, sometimes hundreds or thousands of targets. for us to get the content and then have to let the target of the investigation know is a new discovery requirement that puts the targets, whether it's terrorism or otherwise, on notice that we're looking at them. it's unprecedented. i've said that. unprecedented in our law. >> what's the change we can make? you go and then collectively tell me what the changes are that you'd like to see. >> thank you, congressman. if all we were interested in is extending and leveling the rule this would be a page long. the additional protections that the bill provides are one of the great reasons that we're concerned about it and while i certainly think that we would like to have a conversation. i think those are more than issues around the edges. when we get a warrant, that's true with respect to encryption. i want to find that evidence in other places and if it's denied to me because of delays or because of burdensome notice provisions, those slow me down, make me less effective as an investigator and this committee should undertake a robust review of what this bill is going to do. >> 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 it address that as well. i am just as much a fourth amendment advocate as i am putting these people behind bars, and i wish i -- no one should have to look at the photos of the kids that i've looked at and you've seen over the years and question as to why we need to have some delay before letting that person know that they're going to be arrested. and i yield back. thank you. >> the gentleman's time has expired. mr. jeffries. >> i thank you for your presence today. i want to follow up on the discussion from my good friend from the commonwealth of pennsylvania. mr. cook, i know you've expressed concerns as it relates to the notice requirement and i think in your testimony you refer 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 walk me through a series of responses as it relates to the particular concern that you've got with the notice provision because it's my understanding that section four up to ten days of delayed notice, is that right? >> that's correct. >> and is it your view the at the point days is inadequate? >> so i think it's important for me to point out we have drawn parallels with the fourth amendment as it applies in other contexts. be a everybody seems that's the goal to make the bill parallel fourth amendment protections. this bill does more than that and here is why. if you, for example, have terrorists working out of an apartment, a third party's apartment and there is evidence in that apartment. we get a search warrant, search that apartment, there's no obligation for us to tell the terrorist that we've gotten evidence out of that apartment that could be used against them. >> this bill doesn't necessarily impose that obligation. it's a default provision but there are steps that the government can take under exigent circumstances. i wouldn't think that it would be sound public policy to create a law that simply applies in the instance of the terrorist context. this is a country of 300 million plus people who values their privacy rights. there has to be an appropriate balance between the ability to keep us safe and to prosecute wrongdoers to the full extent of the law. >> as an e-mail user i could not agree more but the fourth amendment has already reached that balance because when we search the home or service providers that homeowner or service provider is within their rights to contact whomever they want to figure out who the evidence is. >> as it relates to the ten days delay. if the government concludes that additional delay is warranted. this bill provides that can be delay delayed? >> there's a recurring obligation to reach back to the court. >> the government can go back to the court and request the delay, is that correct? >> there are narrow limitations. one is that no -- if we can show 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 limit that new -- this new statutory notice rule but the truth is that just isn't how it works. and expanding these obligations on the government will come with great risk in serious cases. >> there are times that a judge can reasonably -- or a magistrate could reasonably disagree with the government. >> there are times that will result in notification under this newly created rule to targets of criminal investigations and alert them to flee or destroy evidence. or otherwise engage in bad behavior. >> mr. calabrese, could you speak to the notice requirement in your view? >> i believe it's a very strong notice requirement and constitutionally appropriate with a very strong delay procedure. one of the things i've been struggling with a little bit we're talk iing about a circumstance where i am going before the judge and getting a search warrant. at the same time i may get a delay of that search warrant. so we're not talking about some kind of separate process where i've got to go through an additional burden. when i get the warrant, i can also make the case that i must delay notice. that can happen for 180 days before a provider or anyone else, you know, notifies the subject, they have to tell they government that they're going to do that, giving the government an ability to go back to the court and say, the reasons for the delay have not ended and we need to expand it. i think it's a very reasonable and balanced approached that supports a fundamental constitutional value one of notice that's embedded in the fourth amendment. >> we recognize the gentlemen from texas, mr. rat live. >> as former u.s. attorney, i always appreciate and listen to concerns expressed by law enforcement whenever conversation proposes changes to a law that may impact your ability to do your jobs. you're working so hard to keep us safe. i want to make sure you have the tools and resources to do that effectively. that being said, i also strongly believe in an increasingly connected, complex digital society, our laws have to be modernized to make sure they reflect the current technological landscape. this information is being stored on computers, smartphones, fitbits, where we travel, where we shop, who we communicate with, all highly personal information. so we got to make sure we've got robust protections in place for that. i certainly don't believe that the fourth amendment protections that we all hold so dear in the needs of law enforcement are mutually exclusive. i appreciate all the witnesses being here today to have a thoughtful discussion about that. from my perspective, it seems like the sec has been the most vocal civilian agency in expressing concerns about modifying. but the s.e.c. doesn't appear to have serve add season on a commercial provider since the war shack decision. despite that, the sec's annual report last year, 2014, touted a record year, cutting evenly enforcement actions, more cases than ever before, a number of first ever cases that span the securities industry. i know that chairman white has testified that the sec isn't issuing subpoenas to third-party service providers for content. so given the record number of cases and first ever cases brought by the s.e.c. 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. but that does not mean there aren't cases that would benefit tremendously. and i guess the point that i would assert is that the fourth amendment is not violated by what we are proposing, which would be an order before a judge which is judge could issue with notice to the subscriber after the subscriber has the opportunity to raise whatever objection they have. from our perspective that does comply with the fourth amendment. you would have an objective fact finder reviewing the situation and determining whether it's appropriate for us obtain e-mails in that circumstance. >> when you say what you are proposing, i mean, how have you been proposing it? >> we've had ongoing discussions with members of congress about these issues for the last couple of years. >> okay. because, you know, from my perspective, it seems like you've been altering you're 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 fbi has a problem, they come and let us know what it is and how we can fix it. >> we've been having ongoing discussions with the staff of judiciary senate and house judiciary -- >> fair enough. thanks for that. mr. salgado, in your testimony, paraphrasing here a little bit, essential you seem to be saying hr 699 is really just a codification of the status quo under the warshack is that right? >> that's accurate, yes. >> okay. you don't think that hr 699 goes beyond the holding in warshack? >> i don't think it does. happy to hear suggestions. but by review of war shack and the bill suggest that they're very consistent. >> mr. calabrese do you agree with that? >> i do. >> mr. rosenwhite? >> i think i do. i haven't checked precisely, though. >> all right. i'm going to yield -- my time's about to expire. i'm going to yield back the balance of my time. >> now chair recognizes himself for questions. ms. salgado, there's been issue and we brought this up here in this emergency issue of provisions, emergency disclosure mechanisms. in written testimony that the primary currently in law are voluntary. he also mentions that companies are often unable or unwilling to respond to law enforcement's lawful demands in a timely manner. i think we all would agree that true emergencies are there. however, it seems to be implying that there's something missing here. so we did a little bit of research in our office. based on the concerns we saw, publishing google's transparency report, it says google received 171 emergency disclosure requests and provided at least some data in response to 80% of emergency disclosure requests. one, we've looked into it. i'd like to hear your answer. can you explain why google responded to only 80% of the requests and why couldn't the response rate will 100% given what's been heard? >> sure, i'd be happy to. i think the statistic you're referring to is in our transparency report. we've been publishing that number for a while here so that policymakers can get an idea of what this number is right. the number is actually low, 171 compared to the type of legal process we get. the 80% represents lots of different situations where the emergency doesn't justify the disclosure. often the case is that the identifier given to us doesn't actually go back to any real account. so there are some services out there where you can create an account using a google or any e-mail address and it's not verified that there is such an address. they may use that account to threaten a school shooting or engage in other violent activity. the authorities will come to google and ask for information about this account used to create the account that made the threat. we look in our system and there is no such account. so the response back is, we have no data to produce in response to this otherwise legitimate emergency request. that gets counted as a nondisclosure. and that adds into the 20% where there was no responsive data. that's probably the most common situation in that 20%. there may be other situations where the request is coming in and the emergency is over. that the investigation is now actually about a historical crime. there is no ongoing threat to loss of life or serious physical injury, which means it's inappropriate to be using that authority to get the information. and we are able to at that point say this doesn't look like an ongoing emergency. we can preserve the information. when you come back to us with the legal process, we can promptly -- >> just real quickly, but you went on with your answer long enough to bring up a question. are you making that determination if the emergency situation is still ongoing? >> that's right. >> not the law enforcement agency offering. >> the statute says we are allowed to disclose if we have -- >> when you testified in 2013 about the emergency disclosure issue, you said that some providers make a decision never to provide records no matter the circumstance. can you identify the service providers which have a policy -- in the absence of come pull sorry legal process if not, why. >> as i stated in response to the question at the time. i have made a decision not to identify any examples that i give specific providers because i don't want to highlight a vulnerability in a public forum. >> i'll tell you what. i'll make a request and you can submit that in a non-public forum are. >> live now to capitol hill federal reserve chair janet yellen is testifying before the joint economic committee. these will be some of her last public statements before the two-day fed meeting that begins on december 15th. that's where regulators will decide whether to raise the rates or not. senator dan coats of indiana is the chairman of this committee and carolyn maloney is the ranking democrat. you can see the press maneuvers around her to get their pictures before the hearing gets yur underway. >> meeting will come to order. i'd like to first welcome our new vice chairman congressman teeberry. we've had congressman brady as -- either want to say promoted or demoted to chairman of the ways and mea