wednesday, 2 december of 2015

House weighs privacy law reform, but may abandon one loophole for another

The House Judiciary Committee heard arguments on Tuesday from stakeholders interested in reforming a nearly 30-year-old computer law that has allowed investigators to access the emails of criminal suspects without a warrant, but the panel’s chairman isn’t ready just yet to rein in that power.

Rep. Bob Goodlatte, Virginia Republican, told attendees at the hearing that nuances within the proposed Email Privacy Act could create obstacles that would hinder law enforcement’s ability to obtain digital evidence during criminal and counterterrorism investigations.

The bill, if approved, would roll back aspects of the 1986 Electronic Communications Privacy Act, ECPA, which for nearly three decades has allowed investigators to compel Internet companies for certain customer data sans search warrant.

Under the loophole, service providers can be forced into handing over the emails of their customers if the messages are older than 180 days as long as authorities can obtain an administrative subpoena — a court order that can seek the same details as a search warrant, but without requiring investigators to display probable cause.

Despite the proposed legislation having the support of more than 300 members of Congress, Mr. Goodlatte on Tuesday said he favors adding changes that would carve out exceptions allowing authorities to maintain their ability to conduct warrantless searches in the event of certain emergencies.

“I support the core of H.R. 699, which would establish a standard that embodies the principles of the Fourth Amendment and reaffirms our commitment to protecting the privacy interests of the American people,” the chairman said. “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 the serving of warrant should also be harmonized,” Mr. Goodlatte said, advocating elsewhere during his opening remarks on Tuesday for a “fair balance between the privacy expectations of American citizens and the legitimate needs of law enforcement agencies.”

The lawmaker’s concern comes amid calls from law enforcement groups and federal agencies, including the Securities and Exchange Commission, who have similarly been advocating for warrant exceptions. Silicon Valley has largely pushed back, however, evidenced by testimony delivered at Tuesday’s hearing by Richard Salgado, Google’s director for law enforcement and information security, who took aim at alleged abuse involving existing loopholes.

“It unfortunately appears to be the case that some law enforcement officials make emergency disclosure requests because it is easier than getting legal process, with the checks that come with it, even though legal process is available in a timely manner,” Mr. Salgado said in his prepared remarks.

(Published by Washington Times - December 1, 2015)

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