Tuesday, December 1, 2015

Statement of the Honorable John Conyers, Jr. on H.R. 699, “The Email Privacy Act”

Dean of the U.S. House
of Representatives
John Conyers, Jr.
“As of this morning, the bill has earned 304 cosponsors—191 Republicans, 113 Democrats, and 27 members of the House Judiciary Committee.  What do all of these members have in common?
“First, we all agree that the Electronic Communications Privacy Act is outdated and provides unjustifiably inconsistent standards for government access to our stored communications.
“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 fewer imagined a world in which we could so freely share information online.

            “The consequences of applying a thirty-year-old 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 lifecycle—when it is drafted, when it is transmitted, when it 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 interpreting. 

            “Because of the rapid pace of technological change, this situation will only get worse if we do not act.
            “Second, the sponsors of this bill agree that the government should be obligated to show probable cause before it can force a provider to disclose the content its customer’s email—no matter how old the message is.

            “This standard is consistent with the holding of the Sixth Circuit in U.S. v. Warshak in 2010.  That case motivated the Department of Justice to voluntarily adopt a 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 an subpoena for the same email if it is stored for one day longer.
“This is no longer acceptable to most Americans.  As the Sixth Circuit rightly observed, citizens have the same reasonable expectation of privacy in their email before and after the 180-day mark.

            “And as the Department of Justice testified soon thereafter, “there is no principled basis to treat email less than 180 days old differently than email more than 180 days old.”

            “Third, the sponsors of H.R.699 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 didn’t think of the medium when it last visited the statute.  The law should protect electronic communications across the board:  email, text messages, private messaging of all sort, 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’s seizure of our email without 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, 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 come together on this bill as soon as possible.
            “I thank the witnesses for their testimony today and I urge my colleagues to give this measure their full support.”    

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