Senators Get Mixed Advice on Electronic Data

     WASHINGTON (CN) – The Senate Judiciary Committee received mixed messages on Wednesday as they received comment on a proposal to rewrite the rules on the government’s collection of personal electronic data.
     The committee is considering legislation from Sens. Mike Lee, R-Utah, and Patrick Leahy, D-Vt. to amend the Electronic Communications Protections Act, which governs how government agencies access personal electronic information in investigations.
     During its Wednesday session, three federal agencies urged it to consider
     their investigative needs as it revamps the law, while business leaders asked for protections of texts and emails closer to those accorded handwritten letters and notes.
     Representatives from the Department of Justice, the Securities and Exchange Commission and the Federal Trade Commission conceded that some parts of the nearly 30-year-old law should be updated, such as a rule that allows government access to electronic communication older than 180 days, but insisted other provisions of the law are fundamental to their ability to stop scammers.
     In his opening statement, Senate Judiciary Chairman Chuck Grassley, R-Iowa, noted law enforcement officials warned the heightening of legal standards in the Act might make it impossible for them to investigate cases in a timely fashion if not accompanied by other changes in the law.
     “Reforming ECPA’s treatment of stored electronic communications, therefore, is a complicated and potentially far-reaching endeavor that sits at the intersection of the privacy rights of the public the investigative needs of law enforcement professionals, society’s interest in encouraging and expanding commerce, and the dictates of the Constitution,” Grassley said.
     Daniel Salsburg, Chief Counsel, Office of Technology, Research and Investigation with the Federal Trade Commission, said changes to the law should allow federal agencies to obtain emails from targets of investigations through court orders, in a situation where the target would have the chance to defend his or her right to privacy.
     But some cases might require other, more secretive methods of obtaining information, such as when agencies are going after “fly by night” scams they would not want to alert to their presence, Salsburg said.
     The law enforcement representatives urged the committee to consider cases in which electronic information their agencies seek is held in a foreign country. The Committee should not propose legislation that would leave the result of such search requests up to international cooperation, Elana Tyrangiel, Principal Deputy Assistant Attorney General with the Department of Justice told Sen. Purdue during the hearing.
     “Proposals that would make it more difficult to get information about non-us persons committing crimes in the U.S. than would U.S. persons is also a concern for us,” she added.
     The second panel of the day, made up mostly of business leaders including representatives for Google, BSA The Software Alliance and the Center for Democracy and Technology praised the Committee’s proposal and encouraging efforts to move beyond the old system of protecting electronic communications.
     “The original disclosure rules set out in 1986 were foresighted, given the technology that existed at the time,” said Richard Salgado, director of Law Enforcement and Information Security with Google. “In 2015, however, those rules no longer make any sense. Users expect, as they should, the documents 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.”
     The business men and women asked the committee to keep individual privacy in mind when rewriting ECPA and to increase the law’s “transparency and consistency.”Later, Victoria Espinel, of BSA The Software Alliance, called for the Committee to require a warrant for the government to seek any electronic communication, regardless of age.
     Both panels agreed the law needs an update to bring it up to date with technology senators could not have imagined when they passed it into law in 1986, but they could not necessarily agree on what lawmakers should prioritize when crafting the legislation.
     “Updating the Electronic Communications Protections Act has been a priority of mine ever since I arrived in the Senate, and now that I’ve been here for about four-and-a-half years, I appreciate more fully how difficult it can be to bring about a change of law that basically everyone agrees on,” Sen. Mike Lee, R-Utah, said during the hearing.

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