Prepared Statement of Senator Chuck Grassley
Ranking Member, Senate Judiciary Committee
Executive Business Meeting
Thursday, April 25, 2013
Mr. Chairman, on the agenda we have two bills listed, the immigration reform bill is listed for the first time so we would request to hold that over for another week.
Regarding the Electronic Communications Privacy Act Amendments Act, as I indicated last week, we are prepared to report this out of committee today. I believe we can do this on a voice vote. However, I continue to have some concerns with this legislation and want to make those a part of the full record.
Before I get into concerns, I would note that the House Judiciary Committee is holding a hearing on ECPA today discussing geolocation information obtained under this law.
This is the second hearing the House will have held on the topic this Congress. Unfortunately, we haven’t held a hearing on this topic yet this Congress prior to this mark-up. In fact, the last hearing on this in committee was in April 2011. This shouldn’t stop us from moving forward given we have previously reported a similar bill.
However, I point this out given my concerns and given that geolocation is intertwined with ECPA since the Justice Department obtains prospective location data under current law.
Should the House address geolocation in their ECPA reform legislation, it would be important for this committee to have the benefit of a hearing to discuss those implications before debating it on the Senate floor.
That said, there is a need to update ECPA. It was passed in 1986, and because of developments in technology, is in need of review.
We have heard from constituents, privacy groups, and businesses, about the problems with ECPA. We’ve also heard from law enforcement and civil regulatory agencies about the benefits of ECPA.
I ask consent to put two letters into the record, one from the FBI Agents Association and one from the Chairwoman of the Securities and Exchange Commission, Mary Jo White, both expressing concerns with the legislation.
Unfortunately, aside from testimony provided to the House Judiciary Committee in March, we have no official position from the Justice Department. Given the impact ECPA has on federal law enforcement, it is disappointing they have yet to weigh in officially.
It’s interesting that despite concerns from law enforcement that we are brushing them aside. In past years, those concerns would have impacted a lot of the amendment process.
Instead, it seems a growing distrust of government is driving a significant amount of public opinion these days.
I’ve seen this first hand in my town hall meetings across Iowa. All across the state I have heard concerns from constituents that government has gotten too big, too burdensome and too unruly.
Unfortunately, this Administration has only exacerbated these concerns, whether founded or unfounded.
For example, I hear concerns that the government intends take peoples guns, that they plan to regulate small businesses out of existence, that the government is snooping through email and online communications at will, and that the government refuses to rule out using drones to kill Americans on U.S. soil.
On top of that, people see our government trample over the rights of good faith whistleblowers and squelch dissent.
So, I can understand why people seem to have a more negative attitude towards government. I agree that government should work for the people and not control them.
So, this growing distrust of government and institutions is why we are even here today discussing legislation reigning in governmental authority to obtain email content.
That said, we would be abdicating our duty if we did not examine the concerns raised by law enforcement and civil regulatory agencies. Additionally, we need to make sure we address any potential unintended consequences that could arise.
The letter from Chairwoman White outlines concerns that the SEC will be limited from obtaining emails to investigate civil securities fraud statutes. Specifically, she states that the legislation, in its current form could have an impact on the Commission’s “ability to protect investors and to assist victims of securities fraud.”
Her letter also argues that the proposed work-arounds that’s been offered would be inadequate. For example, some argue that the solution is to simply obtain emails from the targets of the investigation. Chairwoman White argues that often time these individuals delete relevant emails or otherwise fail to provide them despite obtaining a subpoena. As a result, the Chairwoman fears that this could embolden non-compliance with subpoenas by targets of investigations.
Additionally, the Chairwoman argues against those who say the SEC could simply work with the Justice Department to obtain a warrant. She notes that, “the Commission cannot request that the DOJ apply for a search warrant on the SEC’s behalf.” Further, she adds that the vast majority of cases at the SEC are not criminal and therefore would be outside the scope of ability to obtain a warrant—effectively limiting enforcement.
To remedy this, Chairwoman White argues for an amendment to allow a judicial standard for civil matters akin to a criminal search warrant. This is an idea worth considering as we move forward. It would still require a ruling from a judge of a competent jurisdiction, similar to what we will allow for criminal cases under this bill.
Another area of concern for me relates to the potential impact the warrant requirement will have on how requests are prioritized. This legislation essentially delegates power to federal and state judges to determine what is a reasonable amount of time for a provider to respond to a search warrant. Different judges will undoubtedly have different standards.
As a result, not only could each judicial district, federal or state, have a different standard, but each judge within those districts could have a separate standard as well.
The side effect of this could be varying standards based upon the judge issuing the warrant and not the purpose for which the information is sought. For example, does a judge in Iowa demand compliance will all warrants within 10 days, while a judge in Texas might require compliance within five days. Would this create a tiered response system from providers not based on law enforcement need, but on satisfying judicial timelines?
Some have said that the “emergency exception” in the current statute will solve this problem. But I’m not so sure.
The “emergency exception” allows the government to obtain content information without a warrant in an emergency, but only if the provider agrees. There is no mandatory disclosure.
The determination of whether facts constitute an emergency is left in the hands of the provider, not the law enforcement professionals in a position to accurately say it is truly an emergency. There’s a lot of wiggle room there and makes one question whether this is an exception at all.
So, these changes could have real impacts and could lead to dangerous results in cases where time is of the essence.
These are important questions, and ones we will need to iron out down the road.
Further, I have at least one amendment I would like to offer today at the appropriate time.
I will say that despite my questions, I am willing to report the bill out of committee today. Americans are increasingly concerned about their privacy and updating ECPA is necessary. However, we also need to be prepared to discuss the issue of geolocation information and its impact on laws like ECPA—as the House Judiciary Committee is doing today.