Good morning. The Judiciary Committee will come to order and without objection the chair is authorized to declare recesses of the committee at any time. Welcome everyone to this mornings legislative hearing on h. R. 699 the email privacy act and i will begin by recognizing myself for an opening statement. Todays hearing examines h. R. 699 the email privacy act and the need to modernize the electronic indications privacy act and in enacting it 30 years ago Congress Declared that the laws purpose was to achieve a fair balance between the privacy expectations of american citizens in the legitimate needs of law and fortunes and First Nations is bigger for First Nations these piriformis decades old outdated law has been a priority as chairman of the committee not to working with members of Congress Advocacy groups on Law Enforcement for years on many complicated nuances involved in updating this law. Im i am pleased to now hold this important hearing to examine the leading reform proposals in the house h. R. 699 and to examine in more detail the nuances Congress Must consider in updating this law. While technology has undoubtedly outpaced the law in the last three decades the purpose of the law remained steadfast that im confident that congress will once again strike that balance and do so in a way that continues to promote the development and use of new technologies and services and create a statutory framework that will modernize the law to reflect how people can indicate with one another today and in the future. Reform has brought sweeping implications. More specifically the stored Communications Act governs that the state and local government access to stored email, count records and subscriber information from telephones email and other Service Providers. Ecpa not only of plies one Law Enforcement seeks information the criminal investigation but also in civil investigations and our Public Safety emergencies. H. R. 699 at its core establishes or the first time in federal statute a uniform werent requirement for storage medications content in criminal investigations regardless of the type of Service Provider the age of an email or whether the email has been opened. 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 however are terrance at the Fourth Amendment should not end there. Congress can ensure we are furthering the legitimate need of Law Enforcement through it for reform by joining with the warrant requirement recognizing 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 than the physical world the police so it makes sense the exceptions to the warrant requirement in the procedures governing the service of boards should also be harmonized into a well settled law that the government may conduct a search in the absence of a warrant in certain instances including when the government determines an emergency requiring a search in the government obtained consent from the owner of information. The stored Communications Act created a framework unique to the electronic world in which even in an emergency with the consent of the customer disclosure of email content or even noncontent urges voluntary at the discretion of the provider. Its also well established law that a search warrant must be served at the place where the search or seizure occurs. For three decades at the warrant had been executed with the provider because as with any Third Party Custodian the information sought is stored within. H. R. 699 but now require the government to also serve the warrant directly on the criminal suspect, a proposal which has raised serious Public Safety and operational concerns across the Law Enforcement community. Congress also continued to and sure civil investigative agencies are able to obtain electronic communication information for civil violations of federal law. Courts have routinely held that subpoenas satisfy the reasonableness requirement of the Fourth Amendment. Unlike a warrant which is issued without prior notice and executed often by force with an unannounced in unanticipated physical intrusion a subpoena commences an adversarial process during which the person served with a subpoena may challenge it in court before complying with its demand. The stored Communications Act currently authorizes the issuance of a subpoena direct it to the provider albeit with the requirement that the government notify the customer. But congress can go further to ensure that ecpa satisfies the Fourth Amendment i requiring any civil process authorized by the law became the service of the subpoena on the customer. In this context the customers provided notice and the opportunity to contest the subpoena. Enforcement of the subpoena through a court order issued by a federal judge that protects the rights and privileges of the customer while ensuring that evidence of illegal activity is not insulated from investigators would afford heightened protection beyond that which the courts have deemed necessary to comport with the Fourth Amendment. Congress has enacted laws that impose penalties for certain conduct sometimes criminal penalties and sometimes civil. We have established federal agencies to enforce these laws with the tools to carry out that enforcement. Congress should ensure in its efforts to modernize subseven ecpa we do not illuminate violations of federal law simply because congress chose to make those violations punishable by Civil Penalties but i want to thank our distinguished witnesses for being here today and i look forward to hearing from each of you on h. R. 699 and how to properly balance the privacy expectations of american citizens and the legitimate needs of Law Enforcement. I look or to working with all members on both sides of the aisle to modernize the electronic indications privacy act. Its worth noting today that we also plan to hold a separate hearing on in the future on surrounding access to information located on servers outside the u. S. July 10, 2015. A letter from the Technology Council of north america dated november 30, 2015. A statement from americans for tax reform dated november 1, 2015. The Coalition Letter dated november 30, 2015. Without objection the items have been entered into the record. It is my pleasure to recognize the Ranking Member of the Judiciary Committee for his opening statement. Thank you, chairman. Members of the committee and our honored witnesses here for the hearing. And those who are in 2141 to participate in the listening of this very important measure. Hr 699, the email privacy act enjoys, im pleased to say, the overwhelming bipartisan support of the house. The business arent 304, 191 republicans, 113 democrats and 27 members of the house Judiciary Committee. Now,now, what do all of these members have in common . First of all, we agree that the Electronic Communications privacy act is outdated and provides a justifiably inconsistent standard for government access to stored communications. This statute continues to serve as one of the main guarantees of our digital privacy. The law was designed in 1986. When few of us used and even fewer. The consequences of applying a 30 yearold understanding of technology to modern communication 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, what it is opened by its recipient, and when it is archived in the cloud. We are not well served by a law whose applications are unpredictable and that the courts have had great difficulty in interpreting. Because of the Rapid Transit technological change the situation will only get worse if we do not act. The government should be obligated to show probable cause before it can provide before a provider to disclose the content and its customers mail. No matter how old the messages this standard is consistent that the holding of the Six Circuit Court in 2010. The case motivated the department of justice to voluntarily adopt awards for email standards. It also reflexively ended the unconstitutional compelling of the parties to reduce content and Civil Enforcement action. Current law requires the government to show probable cause and obtained a warrant only for email that has been in storage for 180 days or less. But the government can subpoena the same email. This is no longer acceptable to most americans. The sixth circuit rightly observed, citizens have the same reasonable expectation of privacy in the email before and after the 180 day mark. And as the department of justice testified soon thereafter, there is no principle business to treat email less than 180 days old differently than email more than 180 days old. Thirdly, the sponsors of hr 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 mainly because congress did not think of the media and when i last visited the statute. The law should protect Electronic Communications across the board. Email, Text Messages, private messages of all sorts, 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 a Committee Takes of this bill we should ensure that it does not conflict with the basic notion that the government seizure of our email without a warrant violates the 4th amendment. But we should note that this principle has already taken hold across the federal government. The department of justice already uses warrants for emailing criminal cases. The government stopped using lesser prospects in the federal contacts 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 all come together as soon as possible. I want to personally thank the witnesses for being with us today, for their testimony. And i urge my colleagues to give this measure their full support. I think the chairman. Thank you, mr. Conyers. I would like to recognize the presence of the chief sponsor of the legislation, the german from wisconsin. Kansas. Kansas. Kansas. The gentleman from wisconsin [laughter] we welcome my distinguished witnesses today. I will begin my swearing un. Please raise your right hand. Do you and each of these were the testimony you are about to give shall be the truth,truth, the whole truth, nothing but the truth so help you got . Thank you very much. Please be seated. The witnesses have responded in the affirmative. The director of the Enforcement Division of the United States securities and Exchange Commission where he has served since 2013. Prior to joining the sec he served as the assistant United States attorney for the Southern District of new york where he was a deputy chief appellate attorney and a member of the securities and Commodities Fraud Task force and major crimes unit. As a prosecutor he handled numerous whitecollar criminal investigations, trial and appeal including matters related to securities fraud, mail and wire fraud and money laundering. A graduate of Columbia College and yeah law school. President of the International Association of attorneys and currently serves as the chief of staff of the Criminal Division for that Us Attorneys Office for the Eastern District of tennessee. In his capacity he has worked in the organized Crime Drug Enforcement Task force and the general crime section where he handles whitecollar crime, fraud, and public direction. He also served as the deputy criminal chief and the narcotic in Violent Crime section. Prior he was a Police Officer for seven years in knoxville, tennessee. And a jd from the university of tennessee. Mr. Richard little help as thehell is the assistant special agent in charge of the Tennessee Bureau of investigation. In addition to his duties he serves as an advisor and trainer and criminal law and procedure as well as the bureaus chief firearms instructor. He is a frequent presenter to the Community Organizations on ways to protect children online. Active in engaging the Legal Community on better ways to protect children from victimization. Received a bachelorsa bachelors degree from Bowdoin College and a jd from vanderbilt university. Chris calabrese the Vice President for policy at the center for democracy and technology where he oversees the subject policy portfolio. Before joining he served as Legislative Council of the American Civil Liberties union, legislative office where he led advocacy efforts relating to privacy, new technology command identification systems. Prior to joining he served as Legal Counsel for the Massachusetts Senate majority leader. A graduate of Harvard University and holds a jd from the Georgetown University law center. Mr. Richard salgado is the director of Law Enforcement and Information Security at google. Mr. Salgado oversees Google GlobalLaw Enforcement and National Security efforts and legal matters relating to the data, security command investigation. Previously he was senior counsel in the computer crime section of the us justice department. As a prosecutor, a specialized Computer Network crimes such as hacking, wiretap, denial of service attacks, lucius code and other Technology Driven privacy crimes. In 2005 he joined stanford is illegal electronic computer crimes, Internet Business legal and policy issues and modern surveillance law. He received his jd from yale law school. Mr. Paul rosensweig is the founder of red branch consulting, Homeland SecurityConsulting Company and a Senior Advisor to the chertoff group. He formerly served as Deputy Assistant secretary for policy for the department of Homeland Security, a asecurity, and distinguished visiting fellow at the Homeland Security studies and Analysis Institute and serves as a lecturer and law at George Washington university and adjunct professor as a National Senior analyst of the journal National Security law and policy and a visiting fellow at the heritage foundation. He earned a bachelors degree from haverford college, masters from Scripps Institution of oceanography and a jd from the university of chicago law school. Your written statement will be entered into the record in their entirety and we ask each of you to summarize your testimony in five minutes. There is a timing light on your table in thethe light switches to yellow you have one minute to configure testimony. It signals that your time is expired. And my pronouncing your name correctly . Thank you very much command you may begin. Good morning. Good morning. Ranking member, members of the committee. Thank you for inviting me to testify today. Concerning email privacy act hr 699 pending before your committee. The bill seeks to modernize portions of the act which became law and 96. Theevidence collection procedure. To account for the digital age. Hr 699 in its current form poses a significant risk by impeding the ability to investigate and uncover financial fraud. Ifraud. I firmly believe there are ways to update enough are stronger Privacy Protection and observe constitutional boundaries without frustrating civil Law Enforcement. The Tripartite Mission is to protect investors making fair, orderly, and efficient marks to facilitate capitol formation. Investigating potential violations of the federal security fraud recommending that the commission bring cases against alleged fraudsters another security wrongdoers. The strong enforcement bargain is a critical piece of detection to protect investors with the confidence and integrity of the Nation Security markets. Electronic communication provides Critical Evidence in our investigation that email another message content can establish timing , knowledge, or relationship with certain cases or awareness. Only conductonly conduct investigations we generally look at emails and other Electronic Communications. Inin some cases the person has emailed herself will respond. In other cases the recipient may have erased emails, asserted damaged artwork are refused to respond. Unsurprisingly individuals who violate the law are often reluctant to produce evidence of her own misconduct. In other cases email cannot be subpoenaed because they are beyond our jurisdiction. We may in some instances need to retrieve information from an isp. The proposed amendment would require Government Entities to confirm a criminal warrant. We would not be able to gather evidence including communication such as emails directly from an isp even in instances when it is described are deleted all where the subscriber led to another jurisdiction. Email content from an isp and also incentivize the senior recipient to be less forthcoming in responding to investigatory requests because an individual knows they lacked the authority to obtain emails made us feel free to destroy or not produce them. These are not abstract concerns. Among the type of scams we investigate our Insider Trading activities. These type of frauds illegal acts are likely to be communicated and they are more likely to be noncooperative. Technology has evolved and there is no question the law ought to resolve to take it down a protect privacy interest, even when Law Enforcement interests are also implicated. There are various ways to strike an appropriate balance as the Committee Considers the best way to advance this important legislation. Any reforms should afford an opportunity to participate before the isp is compelled to produce the information. Indeed when seeking email content the division has provided notice to email accountemail account holders in keeping with longstanding and recently reaffirmed Supreme Court precedent. If the legislation were so structured individual have the ability to raise any privileged relevancy or other concerns before the communication is provided. While civil Law Enforcement is still maintained, limited avenue to access, Electronic Communications in appropriate circumstances, such a proceeding would offer even greater protection than any criminal warrant in which the subscribers receive no opportunity to be heard before communications are provided. We look forward to discussing ways to modernize without putting investigators in jeopardy. Im happy to answer any questions. Thank you. Chairman, Ranking Member, members of the committee. Hr 699. Let me get right to it. The Law Enforcement community simply cannot be overstated. Records of contact and communication by internet cell Service Providers. Understand the importance of these records to Law Enforcement world i ask you to pause and think for a minute about how these powerful resources are being used in the criminal world. Child predators troll the internet 24 seven for children to lure them away from parents and homes. Purveyors of child pornography often with pictures of infants being sexually molested sell the images. Terrorists boast of their horrific crimes posting pictures of those online and International Drug dealers, gains command others communicate effectively with coconspirators through email andemail and text. When you realize how pervasive this technology is in the criminal world you quickly realize the ability to access and access the quickly can literally mean the difference between life and death. Unspeakable crimes. And you me on the Critical Role is often the search and our ability to bring those most dangerous in our community. But there are problems. Ranking members recognized. Technology is the ability to continue to use a statutory framework with definitions that were enacted before any of the technology was known, something not workable. That brings me back to hr 699. We would submit in storage over a hundred 90 days. Demonstrating a need for comprehensive, trust i would like to highlight two places this bill creates or perpetuates Law Enforcement. Far exceeds those imposed anywhere else. Burdens greater than those related to the search of a body cavity. Email privacy act expand 4th amendment protection does not recognize any of the wellestablished exceptions to the warrant requirement that would be applicable in every other circumstance. I know of no other area of the law. Email privacy act imposes notice requirements unlike those found anywhere else. The government has long been required to serve a copy of the search warrant on the person and the property being searched, and that requirement may demonstrate to the homeowner or the business operator the authority for the search, but that homeowner and it homeowner Property Owner stems from the usual course to tell however they wish. The government has never been required. Reaching out to 3rd parties. The investigation. And although there are specific, two and a half pages of rules that would control when that can be extended, there simply is a role that has never been imposed in many other contexts. In conclusion, i would like to say that criminals have and we have seen that they have unlimited access to these modern and powerful resources, and they make full use of them. For us on the Law Enforcement side to do our job access to this information is critical. Information has to be accessible. But the Privacy Protection supported by the constitution the congress should not impose new unwarranted. Thank you. Thank you. Welcome. Thank you for inviting me testify. Stay criminal investigative agencies. As you know, theyve is critical. Hr 699 in its current form does not sufficiently protected access. To give you an idea of the volume consider a stranger abduction. Over the course my unit processed and explored hundreds of telephone numbers for media accounts and global devices. My fellow agents and i spent i spent a significant amount of time trying to make contact with various providers. Making sure this process was received an expedited. We had to process hundreds of leads. Volume alone is not the only. Must contend with the lack of structure. Perceived that the creator of the posting on the social media platform may have been conducted. We contacted the provider we noted that emergency provision is permissive rather than mandatory. A great deal of support. Advocates argue that the contents of an email should be subject to the same protection as a letter. Because father to create an enhanced statutory framework , notice requirements and expand the definitions of covered records that will be a greater protection. And it would do this without extending any Law Enforcement used to obtain evidence after we demonstrate probable cause and get a warrant. Law enforcement control warned exceptions. The physical and Digital Worlds on the same plane, not favored digital evidence. Hr 699, more balanced approach the Law Enforcement can access the evidence it needs. The higher proof requirement a neutral magistrate should allow us to gather evidence, the timeliness of effectiveness that we should expect. Requires the criminal investigation to pursue leads. We also are as a committee to carefully balance the need for notification thing is the resource burden. The timeline means less time investigating crime. Whatever standard of proof you decide is appropriate, appropriate, Law Enforcement can access the evidence needed reliably and quickly. Speed is important in all investigations and should impose structure on Service Provider response. Requirement for Automated Exchange the Legal Process to help speed access to evidence, provide transparency inauthentic a Law Enforcement. Warrants should look like warrants of urls. The standard exceptions to the warrant requirement should exist in Law Enforcement should control whether or not they are invoked. Everyone agrees Law Enforcement should have rapid access to Communications Evidence in a lifethreatening emergency, but that is not always the reality. Some declarations are unfounded, but those are unilateral determinations. Law enforcement on the ground is in the best position. We already do it in other contexts all the time, and there is an existing body of case law in court to determine whether or not it is correct. I want to reemphasize how important it is to our nations criminal investigation. We agree access should be updated, but this should reflect the original balance through legal demand and protecting. 699 goes too far extending the burdens of the traditional search warrant scheme through much broader range of records without any of the commonlaw exceptions while requiring us to be unprecedented just because the evidence we are seeking is electronic. Electronic. Thank you for having me, and i look forward to your questions. Thank you. You are right the 1st time. Am on a losing streak. Go ahead. Thank you for having me testify. Thats what we appreciate the most. Thank you for the opportunity to testify on behalf of the center for democracy and technology. A nonpartisan Advocacy Organization dedicated to protecting privacy, free speech command innovation. We applaud the committee for having a hearing and urge the committee to speedily approve hr 699, the email privacy act. When it was passed it relied on balancing pillars. On . n . Legitimate needs of Law Enforcement and support for innovation. Changes have eroded this balance. The reliance on trusted 3rd parties have left those communications with limited statutory protection. This has created legal uncertainty for cloud computing, one of the Major Business innovations of the 21st century and one at which us companies excel. At the same time information accessible to the government has increased dramatically from emails and Text Messages to social networking posts and photos. Most if not all of this information would not have been available in 1986. The technology has changed, butchanged, but the law is not creating a major loophole for americans rights. Courts have acted recognizing the cases, people have a reasonable expectation of privacy and invalidating. But that is not enough on its own. A continues to lag behind technological change and harm smaller businesses that lack an army of lawyers. It also creates uncertainty around new technology that rely on the use and storage of the content for communication. Reform efforts face a concerted assault from civil agencies, seeking to gain new powers employees privacy loophole in the bill. Agencies have block performed in spite of the fact that the sec has confessed to never subpoenaing and ifc. No less than fbi director, told the committee that in regard a change would not have any effect. In fact, new civil agency powers would harm the privacy of ordinary citizens. Imagine if the irs had these powers back from 2010 to 2012 when they were improperly investigating the status of tea party organizations. During that investigation the irs says lengthy timeconsuming questionnaires given information on what the members were reading, reading,reading, facebook posts, donor lists send copies of material they were disseminating. The irsthe irs targeting of conservative groups is limited to lengthy questionnaires, subpoena authority is extremely broad and likely could have been used here. If the irs had the power that the fcc proposal recommends be granted to all federal agencies they would have been able to go beyond gathering information directly from the target of the investigation. The irs would have been able to go to court and enforce an order allowing them to go directly to the ifc and seek the subjects email while under the fcc proposal the subject of the investigation would have enabled to contest that in court, civil changes are very low and is clear that the expensive idea of the information they could seek. This type of Agency Overreach is exactly why we cannot grant agencies unjustified authorities. Support for privacy reform is deep and abiding. More than 100 test companies, trade associations and Public Interest groups have signed on to the reform principle. Signatories include nearly the entire Tech Industry musk in the political spectrum and represent privacy rights, consumer interest command free market value. More than 300 cosponsors including the majority of republicans and democrats. Award for content has become the status quo. Nonetheless, it is critical for the committee to approve hr 699 in order to cure a constitutional defect, protect individual privacy and is your new technologies continue enjoying robust constitutional protection. Thank you. Thank you. Welcome. Chairman, Ranking Member, members of the committee, thank you for the opportunity to appear before you today. Would you pull your microphone closer . Thank you. Director for Law EnforcementInformation Security. I oversee the companys compliance with government requests for users data including request made under the electronic communication privacy act of 1986, otherwise known as expo. I have worked on issues and the Us Department of justice. Google strongly supports hr 699 which currently has 304 cosponsors, more than any other bill currently pending in congress. It is undeniable and unsurprising that there is strong interest in aligning with the 4th amendment reasonable expectation of privacy. The original cloture rules set out in 1986 were forced given the state of technology back then. Those rules no longer make sense. Users expect that the documents they store are the same 4th amendment protections that they do in the government must enter the home. Compelling policy or legal rationale for there to be different rules. In 2010 the sixth circuit opined in the United States versus rorschach that they violate the 4th amendment to the extent it does not require Law Enforcement to obtain a warrant. In doing so the sixth circuit effectively struck down the 180 day rules. As irreconcilable with the protection. Effectively the law of the land today as observed by governmental entities and companies. Hr 699 is a modest codification of the status quo and implementation of the sixth circuit conclusion. They last testified before the house Judiciary Committee back in march of 2013, both of which have a significant bearing on updating the statute. First, the Supreme Court issued a landmark decision in riley versus california where unanimously held that office is must contain a warrant before searching the content. Chief Justice Roberts noted that a regime with various exception and carveout would contravene our general preference to provide clear guidance to Law Enforcement through categorical rules. To reinforce the constitutional imperative chief Justice Roberts concluded his opinion with unambiguous direction to Law Enforcement writing the fact that Technology Allows any individual to carry such information in his hand does not make the information any less worthy of the protection from which the founders sought. A policeman do before searching a cell phone is accordingly simple. Get a warrant. Notably this committee is being asked by some today to jettison precisely the type of categorical rules that the Supreme Court held were imperative. Doing so would undermine reasonable expectation for privacy and encroach on for Privacy Protections afforded. Wheres the committee to reject such pleas. Second, many states have enacted bright line rules to bring there state versions in line with the 4th amendment. Hawaii, texas, maine. The California Legislature overwhelmingly approved landmark legislation to update californias version. Not only does this require the government to obtain a warrant before it can compel thirdparty Service Providers to this post content but it extends the content to communications metadata. The Sensitive Data stored in the cloud. Concert with other papers and effects. Hr 699. Welcome. Increase the opportunity to come before you today with email privacy underlying principle. Inherent. As you know, roles throughout government, Deputy Assistant secretary for the department of homeland the significant responsibility for counterterrorism efforts and today serve as a visiting fellow at the heritage foundation. From this perspective i am pleased to acknowledge that everyone on this panel agrees that a warrant requirement is an appropriate response. It seems to me that notwithstanding the uniform agreement to go out the details as a matter of statutory law. Has its roots not in our agreement here but rather in the longstanding understanding of the privacy of ones personal papers and effects that goes back to the very founding of this nation. The case which was the wilkes versus wood case. Wilkes was a protester, much like some of the people in America Today is papers and effects with the subject of a general warrant. That act buys a search and was one of the most salient effects that drove the revolutionary movement. Likewise the assistance case with james otis famously lost, john adams said was the spark that with the flame of revolution. Today emails are our private tables. The isps that transmit my email to you are the equivalent, functional equivalent of the post office, and the Cloud Storage system i used to store that information is the functional equivalent of the bile in my office. There is no ground that i can see in that is consistent with what the framers understood the personal privacy and papers to be to exclude that information from the full protection of the warrant. And i would add that our history of 4th amendment understanding has followed the development of technology by consistently applying that same principle when the Supreme Court was faced with the idea of telephones back in the 1960s. They saw that those types of personal communications ought to be subject to the exact same sorts of constitutional protection notwithstanding the fact that telephones were unknown to the founders and over the dissent of justice black you said history says there are no telephones. It should not be in the 4th amendment. Likewise, we have recently come to understand that the cell phones in our pocket are not just telephones. They are now many computers that contain the stuff and substance of everything that we know and understand. So too i would submit with the content of our email communication and are stored data and cloud Service Providers, whether google or microsoft or yahoo, this is where we store our data today. So what is the debate . All that i hear that is left is the application of exceptions that are carveout and restrictions on this general warrant requirement. And to some degree that has an intellectual appeal to it because we have had exceptions of 4th amendment for a while. I doubt that is really what the advocates are suggesting. Suppression rules for when evidence is wrongfully collected in violation. The truth is that we had, when it was 1st passed no exception for an emergency at all. The current statute was added in 2001 post september 11 at the suggestion of the department of justice. It is strange that we would see that exception and expansion held out as a reason to oppose the fundamental changes that are necessary. I would submit that the time is ripe for change in the principle is clear. Fbi Law Enforcement, no more access to store email than store private letters. I would urge the committee to give the bill before you plenary consideration and move it to the floor for consideration where these issues can be hashed out. I thank you and look forward to answering your questions. Thank you command we will now proceed under the fiveminute rule with questioning of the witnesses. I begin by recognizing myself. If congress were to issue a subpoena for the contents of a customers email, would that subpoena violate the 4th amendment . That is a question i would have to look into, how the 4th amendment applies to congress. I have not done enough research to be able to answer that with much competence. The changes we are talking about today would not in any way affect the investigative powers. It is an important question because if you cant answer that question right now command to this one. What is the constitutional distinction between the congressional executive support. The content of the email the Government Employee servers and emails. The ability. To get the information. We very much appreciate your taking some time to think about the answer that question. A very important question. The cost the question between congressional subpoenas. A very significant one. Thank you. Critics of the civil mechanism citing the fact that the sec has not sought the service subpoena in the five years since the sixth Circuit Decision in usa. That needs to be solved. Why is it your agency sought by any providers. Congressman, the decision was made. The decision was made in excess of caution not to issue subpoenas without consent. And we have held off on doing that in deference to the discussions that an ongoing about amending act that. At the same time we have never felt like were shed preclude us from obtaining email under the constitution pursuant to the subpoena with notices. It does not undermine the compliance review the 4th amendment. In deference to the discussion, in deference to ongoing before congress about the decision of what to do. From our perspective there is an Ongoing Investigation that would benefit from subpoenas were we have not obtained email from the subscriber. Unable to obtain them be as we have not been able. We issue subpoenas to individuals all the time, and all the time of thirdparty older. They have the courts clarify deference to the ongoing in congress about reforming. It would have been helpful hr 699 notice to the customer and the nature of the inquiry where its Law Enforcement. When they serve a search warrant on the home. What is the harm. Lawenforcement inquiry with reasonable suspicion. Turn your microphone on. A search warrant practice. Its not something that Law Enforcement give you a warrant and in the analogy and 50 and evidence always serve a copy of a warrant on the. Hr 699 imposes an additional set of requirements that we discussed something that the nature of our investigation that goes beyond what is required. Thank you very much. Thank you, mr. Chairman. The statement of the john colorado by the committee. The questions. So popular. The sponsors of privacy advocates, civil libertarians prosecutors in fortune 500 companies and small businesses. Hundred thousand americans. I think that americans, the values that underpin this nation the fundamental of what government can do and having rules are and how they can do it. All this does is a very modest step of bringing our Privacy Protection into the 21st century. And everybody agrees with that. We have been told in the washington post, 86 percent of americans supported reform. This panel is unified in saying that we need a warrant for email. We have minor issues around the edges, but i believe this is a bill that would pass congress, passed the house of representatives by 300 or 400 votes. We simply need a markup and work out some of the issues around the edges. Thank you. Also in your testimony you mention that the bill faces a conservative some from several agencies that ctu statutory extremes as a tool to gain new powers. Some powers are already on the books. If you dont use of authority for five years and is a questionable Legal Standard about whether you can use it all it is new authority. It simply cant be that you have this authority but you have held off on using it. Other what you are doing is not important or you dont think you have the authority. To me there are really no other options. Thank you. Mr. Rosensweig, the government often conducts parallel criminal and civil investigations to the same target. What would be the practical consequences if we adopted a warrant standing for emailing criminal investigation and some lesser standard for those in civil defenses . The risk that the exception would swallow the role. I spent much of my early career prosecuting environmental cases, regulatory area where the civil regulatory authorities had civil and administrative powers for securing evidence there was a set of procedures for parallel preceding procedures that were internal to the executive branch that govern the circumstances under which the civilly collected evidence could be transferred to the criminal prosecution side for use in a criminal case. Those rules were simply rules of grace at the discretion of the executive branch, not statutorily mandated and not expressed in any constitutional limit. There would be at least some risk in an effort to evade criminal authorities would solicit the securing of the evidence through civil process under a lesser standard. I do not mean to ascribe the motivation to anybody, but nonethelessbut nonetheless the interstitial pressures are very real. One final question. The sixth circuit tell that to the extent the Communications Act permits the use of subpoenas to compel the collection of email, the statute is unconstitutional. Given that holding, is the mechanism proposed also unconstitutional . Anyone want to try that . I think it likely is. It has not been tested in court. There is a history of restricting civil authorities. Also some law that points the things called administrative searches that may be seen as a validation. Fiber judge it would come down against it. Expand the 4th amendment challenge . Ii would say no. Thank you so much. Is a truthful to testify that if hr 699 becomes law, the fcc will be denied the ability to obtain evidence . I do not agree that we are not able to do it currently. We have are trained from doing it in the congress has an ongoing discussion. Okay, i guess that you are ignoring this decision on that. Even as it was written almost 30 years ago, they could only subpoena email content after it was older than 180 days. Are you asking this committee to expand a Legal Authority that was found unconstitutional in a more limited form . We are not. Why are you not . Because you would like to be able to issue subpoenas, email content that is less than 180 days. We would defer. Oh, no, the thing is that i think that the court has decided and you are not happy with the courts decision and with what your testimony says, that you would like to expand something that has already been held unconstitutional. I disagree i disagree with you and let me ask the whole panel just ask yes or no. Would that lobby constitutional . I think that gentleman havarti said yes. Yes, it would be constitutional. Sir . Yes, it would be. Sir . I believe no. Sir . I believe it would not be. Sir . That is what he said. I think we heard from him and since you believe that the law would be constitutional, how do you square that position with the Courts Holding this . I think the critical distinction is the one that the fcc has already gone and that is that the subpoena had issue there and it was one issue with no notice to anyone. The Fourth Amendment of the United States constitution, as we know, has never imposed a one wireman without any other exceptions. Or without any other way. Maam . Congress and come i believe that the due process provided by the fcc or postal offers a significant amount, the same contemplated by the amendment and i believe that the courts would do that and be that as sufficient attraction. Even if there is an immediate motion to caution the subpoena, isnt there the that is because our subpoenas are not self executing we need to compel the production. Okay. Except that were shocked and dismayed as the opposite. And the thing is that we are having to balance the fact that apparently the position of Law Enforcement is that they want to expand what is logically shouldnt this be a part of it . The one that touches on it is one that the court has appointed. Correct, which has also been not favorably received recently. Let me turn to you, because we have approached this whole issue of the point of the Fourth Amendment and the constitution and the right to privacy and the like. So can you comment on the equipments, can you comment that privacy is not secure in an american product . Thank you, yes, i certainly can easily burn up the rest of your time with an answer to that question. It is a Significant Impact on american industry there is a perception outside the United States. Its no secret, your poll this perception, the data held by u. S. Companies is somehow there for the taking for the u. S. Government. And this bill, the email privacy act is a good step towards getting rid of that perception, making sure that they have the to protections. You know, certainly this is not an issue for facebook, for other things, for all of it. And ireland right now and the like. Has anybody added a the dollars at risk to u. S. Economy on these privacy issues . That may have been done. We need to get back to. Okay, that is fair enough. I would like to mention that the chief justice talks about the conclusion and that it is the answer of what policy the police must use before searching a cell phone and it is accordingly simple, to get a warrant. How does that position applied to the legislation that we are considering today in your judgment. I think that it illustrates the point that the Supreme Court wants us to have rules so that the Law Enforcement officer knows what to do. When we are talking about the Fourth Amendment and the right to privacy, we are not messing around with gray areas. We recognize the significance to the privacy interests, we have the clear rules and the rules should be defaulting to a warrant and. Thank you, my time is expired. Paterno recognizes the gentleman. Thank you, mr. Chairman. I think the witnesses for testimony. It was mentioned that there is a general agreement among the panel and on others except for a few people that would like to expand the dragnet and i would ask the gentleman, and mr. Littlehale, is there anything that expands the dragnet. I am troubled that interpretation. Only define it, is there anything in this bill that expands your ability to do investigations and perhaps make innocent citizens more horrible. No, sir, i think that this is a narrow impact that limits a couple of unprecedented ways Law Enforcements ability to do their job. That is my understanding of it as well. Yes, i share that concern. I believe that the bill imposes additional limitations on traditional search warrant practices and even if the standard approved governing an additional categories as contemplated is given, we will have Less Authority with respect to the records then the records in the physical world. We turn over to the gentleman. Thinking at this from this perspective, when we sign up for an email account, there is a long agreement that is there that i have to confess that i have not studied that or have my attorney look that over. I say okay, i agree and i get my email and im glad to have the service and it works really good. Am i in that waiting is some protection of privacy. Well, not with regardless what we are talking about here. The agreement certainly talks about how we have used the information in where we could eat needed to provide the service and its meant to describe to you what has happened. But with regard to this bill and the Fourth Amendment, we are going to honor the search warrants that are served as a valid Legal Process. We honor the subpoenas but not for content but what the statute says that we honor them for her. It is our preference to let users know when we get these requests as we are informed by a gag order that we are not able to. So we are going to honor all of those rules that the congress has put in place and that under the Fourth Amendment has established and we also have an on request to. Yes, that would be my summary here. Yes, stored emails. Okay, so can i have the right to this if i had a provider that said we want to wave, can you wave your authority and protections and hand that data over to a provider. I can do that willingly under the current law . Yes. You could not consent to anything as provided and not pillars. If the police come to your door and say can i get this in your file cabinet, you do not have your buyer a warrant. You can say sure, come on. You are familiar with california versus greenwood. Yes. It is essentially to take your garbage out to the curb and its not protected by any Fourth Amendment rights. If i delete my email is in there within the custody and we have waived the right to privacy is at an open access to the investigators . I would say no, but i have to think about that. My sense is that when i delete the email that i am intending not to throw to the curb as garbage but rather to eradicate its existence altogether. We are actually we need to have a distinction between greenwood and what those emails consist of. This has been clarified testimony today. I yield back the balance of my time. This is the gentlelady. Thank you, mr. Chair. I want to care for holding this hearing and mr. Ceresney, do you dispute that continued availability of court interference and administrative subpoenas on targets of the investigations we may have to see if this should pass. Should it pass . If you think that this passes, do you think that you will continue to have the availability of preservation orders and be able to have the subpoenas . Yes, i believe that something that has been obtained under the proposed statute. But that would not allow us to obtain those emails when the individual doesnt provide them to as. Are you saying that the email privacy act would be to blame if we do not if you dont take this issue of preservations order from day number one of an investigation . Is there any reason whatsoever that you would not take that step which can be done directly without a judges involvement. The problem is that it doesnt allow us to obtain the email. So certainly we would do that, we would try to preserve the email and make sure that it is available in the next step that is available would be part of this. See your comment doesnt hold water. The only entity that would have would be the isp and we wouldnt have any part of this. If they preserve it could be a part of this. I dont know about you, but i use email to keep in touch with my family, my husband and friends back home in Washington State and im sure everyone in this room and in this building would tell a similar story as email has gone mobile and its virtually indistinguishable from a phone call or Text Messages and contains very important details of peoples personal lives and stored in the cloud by Companies Like that of mr. Salgado. And i find it highly disturbing in her testimony that seems to subject the views and email Service Providers, more like a witness or an informant that you should be able to have directly from information of intimate communications. So they want a box of documents, can you use this to bring a locksmith to their home to open the door and take documents . We cannot. Please explain why you think that we should give you the ability to do exactly that with the digital equivalent. And how that can comport with simple expectations were privacy and due process and without a shred of evidence from you so far. [inaudible] that is the appropriate circumstances. We do have instances in the past where we issued where we can show significant evidence in investigation. It is clearly our digital home. I mean, you would find much more Sensitive Information about me in the cloud than you would in my house. If you want a physical documents there, whats more sensitive area also, we missed filling out taxes, for example they are much greater than the criminal predicates 41 and a much greater number of ways that we can access information and we are opening up the clouds for a much greater invasion even by criminal agencies and i think that that is exactly part of it. Giving you a couple more seconds, you talked about cases. And just one more thing to answer with mr. Calabreses point. We have the standard that we would have to me. Whatever they would like to establish, we are finding that standard but what we need is some mechanism where individuals do not produce the email and has deleted or otherwise destroyed it. I think that we have already discussed it. So my time is expired. The gentleladys time has expired. Thank you, mr. Chairman, thank you to the witnesses for being here. For anyone that can answer if someone deletes an email that he or she has already sent out, would they be able to retrieve that at some point. It may vary from company to company. In most cases there would be some short period of time and the content that has been the leader then there would be some time that would vary from provider to provider. Could it be retrieved from the person to who it was sent . It certainly could and there could be many communicants involved. The issue there and i am not one of the cosponsors of this time even though i am one of the people proudest of the work that we have done in getting this bill at this point, i think it is fabulous. My concern has been that we have left a provision that allows the government to apply for court order so that they can still not informed the individual. That is fine if there is a question endangering the lives of physical tv of an individual as we have talked about and i have signed all kinds of felony warrants. But i have made sure that there was probable cause and particularity. In the description in the affidavit as well as in my warrants. And i felt comfortable in 2005 in 2006 when the Bush Administration was assuring us that we would never use the National Security letters unless there was someone who actually had contact with an International Terrorist organization and those types of things. Then we found out on page 11 it says that basically the provider would have the burden of notifying the government at the end of the exclusionary notice time. The provider has the burden of notifying the government in my time is about up, so im going to notify the subject of the warrant so that the government should show that there is no burden on the provider to do that. If the government wants to keep that secret, the government should try to extend it. But i am not sure that it should extend to virtually every case. So you say that we should not, we have already protected the documents and we shouldnt change that. I would agree. We check a box that says that the documents are not yours anymore than they are mine and im wondering if maybe you should have some legislation that tells them, you know, these documents really are the property of the person that created them and not the one that provided this to put them in. I would respond by saying that i share your concern about the delayed notification, especially the destruction of evidence portion of it. I think im risk of injury is very good. And its in the immediate aftermath of 9 11 is a codification that had developed in the court of appeals that have adopted these various rules when they would delay notification. So to some degree you are arguing is 9 11 preexisting situation and in terms of their own personal data in the cloud, i think that there are many Service Providers who offer different degrees of control over the information and so i generally try to be comfortable there is competition in the marketplace and that is something that matters to you. There are Service Providers that will promise that they take no interest and will not process or examine the data. And that includes the Service Providers that provide you this. So im kind of free market on that. Gentlemen, the chair recognizes the gentleman. Thank you, mr. Chairman. Thank you to our witnesses for sharing your expertise and your diverse perspective. Our assembled panel of witnesses know that this evolves much faster than the law. It also presents a gap that must be addressed and it represents an important step to closing the gap in preserving Privacy Protections for americans and its no surprise that supported by the American People. He said if the bill becomes law without modification the sec and other agencies would be denied the ability to obtain Critical Evidence and this suggest that you are engaged in some activities today that would be blocked by the legislation and so my question is do they currently view subpoenas to obtain this content of communication from internet Service Providers . We do not. As i said earlier it is because its indifference to the ongoing situation of congress were a number of years until he determined to hold off on using another that does not mean that we believe that we have the authority it is constitutional to do it. The written testimony acknowledges that we often conduct investigation with criminal authority. If you guy needs a warrant to obtain my email, what prevents them from helping the government by sharing my email of contents with the fbi mx mxp maxa the first time is whatever standard we havent even if it is probable cause. Second when we issue subpoenas your objection is who makes the determination . What we are seeking is authority to achieve this with notice to the subscriber that provides additional. What we are seeking is the subscriber would have the ability to provide whatever objections of they have whether they be relevant or whatever other protections beyond those which is part of it. Any subpoena or other order would be in advance of our investigation at the behest of criminal authorities, we do not issue this or seek this. But we do it to advance her own investigation. The question we havent heard an answer to his probable cause of what. Its a crime and its very clear and we know what they are, they are interpreted tightly. Violations of civil law are much greater. If i stayed to this was a business expense one maybe it was a vacation, you could say that i have probable cause to believe that by going through my email on another he was on vacation not on a business trip. No matter what the standard is it is a much broader access to american communication. Current law provides that the government must show probable cause that has been stored for 180 days that can use a lesser process and so is there a consensus that this is inconsistent with how use emails today should be eliminated and in addition to that we have written testimony that you give a good list to what we saw her online. And other forms of social networking. These merit protection and is adequate . I think that they believe that the Fourth Amendment should extend to these types of medications. My worry is that we dont know what the next new technology is going to look like. We dont know we shouldnt be waiting and these actual determinations do not come up that often. He should not be waiting for five or 10 or 15 years for a court to allow them to say that we have privacy and three occasions and we all seem to agree that the content of communication should be protected. Chair recognizes the gentleman. Thank you, thank you all for being here. My friend was saying that i used to be a criminal justice. 20,000 cases or more. All of that time i have on enforcement officers come to me with a request for me to sign a search warrant based upon affidavits and i signed it. Some of them i did not sign because of the basics of the Fourth Amendment. And it makes us different than every other country on earth. Because of our history. It has a uniquely effective United States history goes back to the british who want them to kick in the doors of warehouses in boston to see if the american colonists were scoring run that they had not paid taxes on. They want this the same as a court order. So we have specific warrants. And it makes no sense to me that this is protected for six months but not more than six months. Sending a letter snail mail, i send that off one of my grandkids. It floats around in america from post office to post office and who else knows where. It is protected in a form of communication. When we use emails or storing it in the cloud its a form of communication wherever it may be. And so i think that its Congress Responsibility to determine what the expectation of privacy is. Its not the federal judges responsibility. It is Congress Responsibility to say that this is an expectation of privacy for americans. And i dont buy the argument that we are in the digital age coming have to give up some of your Constitutional Rights so that we can have government investigate things. Whether its still in a station from a criminal investigation, i do not buy it because the Fourth Amendment gets in the way of that. I think its one of the most important rights that we have. Its our duty to set up a standard and over 300 members have mine on this deal and had not come up for a vote. And so i think that most members see the importance of privacy. The server, let me start with you, i only have five minutes. The case, they did not appeal that. Did they . Note, the case is not appeal. This includes civil investigation, it is to protect us from the fcc. And the irs and the epa. Because without this legislation they could keep doing what they are doing. Would you like to comment on that he meant that civil agency . There was no improper investigation that was certain to a much broader category of people than anyone feels comfortable with. It is part of the civil investigations and it disturbs me that if someone has a relevant standard that is so low that we might bring those kinds of investigations into play. I think thats a problem. And i think that that is why we need to limit this powerful authority to one this under probable cause. You can respond in writing because i had the same question for all of you. The basis of a search warrant also requires there to be notice under the current law they can do their snooping and the person being investigated does not know about it. Is that correct . It depends on the circumstances. Notices delayed. It depends. Would you agree that its part of the fundamental fairness but there is a search warrant is executed and that there is a return to the judge of what was seized or not seized and whos they get notice of the results of the search warrant. Has come of this is of the most invasive things. It can be the subject of lawenforcement scrutiny. So we have some compelling reason not to notify them and they absolutely need to notice that. I would ask to submit questions for the record. Just. And we should get the southern rule and we should be able to talk longer than five minutes. We have a better ability to express ourselves. [laughter] with that, we recognize the gentlelady. I thank you very much, mr. Chairman. I want to engage in a give and take and let me just ask a question to mr. Poe, let me thank you for your service and i will not attribute your win or loss, i will take the case and i just want to ask the sense that case, do you know whether or not the department of justice has used anything less than a warrant based on probable cause to compelling thirdparty provider to produce a content of this. Yes. Let me move on. Thank you. To say that i come to this with a sense of trust of government since the government is unworthy and i am inherent to the Fourth Amendment and its value with the founding fathers. And its going to be made clear that issues dealing with terrorism and any elements are specifically pointedly inappropriately excluded from the legislation. Are you comfortable with that . Very much so. That is part of the ground with my personal view of this legislation that is appropriate. And that includes those that have empowered the National Security apparatus to protect us in ways that i think are appropriate, it is important to exclude from the coverage of this bill those issues and i think that that is something we can agree upon and the instruction provision that is appropriate to that. I think it is important to make note of that. I am on Homeland Security as well, american is obviously alert. And we it would include law school. Sadly i do not. Okay, you would be favored. Let me engage both of you in the question of the value and the sanctity of the Fourth Amendment and whether or not we would in this interpretation of this bill , many are saying whether it is constructionists in terms of preventing Law Enforcement from doing their jobs in your disengaging in this. I will not believe that it is obstructionist, we are codifying what amounts to existing practice and protections and we are also saying that you should have noticed when someone does a search of your most private program. Unlike a physical one or you get that notice immediately, we are actually delaying notice for 10 days here so that the Law Enforcement has a head start. Then we are allowing a gag provision that says that you have an important circumstance you will never get that notice. And this is pretty basic protections for anyone in on this we if there issues im not sure that there are. But i think that that is why we have markup so that we can bring these issues forward and whether there is anything here that we can get this to the floor. We have a responsibility to be able to inquire what the basis of this warrant was. That was placed in my hands and i think the American People place this in the collective hands. What is your perspective on that. And maybe you would be able to answer the you are not hindered by this. I agree with that completely, the role of the neutral magistrate is significant and its something that sets america apart from a lot of countries and gives us a layer of protection to make sure that wellmeaning but perhaps more judgment is overridden by the cooler judgment of a magistrate doesnt have a particular interest in the case. It is significant for the Fourth Amendment, no accident that that is the standard for a valid warrant. Would you like to comment on that as weise did in the room on pins and needles wondering how we are going to treat this bill . Sumac thank you, mr. Chairman. I could not agree more that it is important in this situation to provide objective he was. That is why the order we are proposing would be before this with notice and subscriber would be able to bring up any objections that they have to this seeking the email and that is actually what we are seeking in this case. We would try to obtain that if we could and the judge would be part of that. I like this and im willing to listen to the gentleman and i look forward to going to the mark of sumac thank you, the time is expired and the chair recognizes the gentleman. Thank you, chairman, good afternoon. My question is going to be directed in that order. This is how it might make us more safe than if we had career framework in place. I do understand your question. Yes. And i think you begin the answer obviously be in christian is slightly different than the one we are having now. And what i would say about the encryption discussion is it is essentially a reflection of the exact same impulse which is that people are seen as the lack of privacy as a digital home, the electronic home. To the extent that congress does not take steps to tie protect that privacy by law and description is engaging in self help in protecting themselves with their own capabilities. I would say that this is an idea and the mathematical truth and its not suppress evil. And it will provide comfort to citizens and its going to engage even more than selfhelp. I agree and i think that to the point in your question to services overseas, that is a natural consequence of the misimpression that the u. S. Government has easy access and its not true and this will help to make it clear based on this misperception. I have 18 years of prosecution, state and federal level. And as far as what i have seen, this is only my third term, the less federal government in my life, the better. And the many more that we can get into. Being a Law Enforcement and a prosecutor in many childabuse and lewd video cases, if you could quickly tell me what the obstacle is and i know in some investigations i didnt to know that at this point in my investigation that he was the target or she was the target. Could you please respond. I am concerned that we have lost sight of that issue in the emergency aid exception issues. If i could just begin with that. The concern that we have is that many of these investigations, many hot investigations, they would involve dozens and sometimes hundreds or thousands in child cases that are targets. And so, it is a New Discovery that puts the targets, whether it is terrorism or otherwise on notice and it is impressive. What is this change that we can make. Can you collectively tell me what the changes are you like to see . Thank you, congressman. If all we were talking about, the notice provisions youre talking about that the bill provides is one of the great reasons that we are concerned. While i think that we would like to have a conversation i think that that is more than issues around the edges. The body of the concern of the bill is that when we get a warrant, we wanted to mean something. And in many instances i do not. I want to find that evidence and other places and if its denied to me because of delays or notice provisions, those slow me down and i believe that this should undertake a robust review of what they are going to do. My time has run out. Would you tell me what you think could be a remedy for all of this and anyone else that wants to address that as well . On the Fourth Amendment advocate and i wish that no one should have to look at the photos and the kids that ive seen and question as to why we need to have some delays before letting that person know that we are going to be arrested. I think the witnesses. I want to follow up on that discussion. I know that you have expressed concern and i think that you referred to the provisions as a red alert tool that could notify an individual that he or she is under investigation. Is that correct . Yes, if you could please walk me through the series of responses, it is my understanding that section four permits up to 10 days of the late notice. Is that correct . That is correct. Is it your view that the 10 days is inadequate . Well, so i think that its important for me to point out that in our discussions we have drawn parallels with the Fourth Amendment as it applies in other contexts. And everyone seems the bad is the goal to make those protections. Its what if you have terrace working out of an apartment, there is evidence in that apartment. We get a search warrant, we search the apartment, there is no obligation to tell us that we have gotten that out of the apartment that can be used against him. This bill does not necessarily impose that but it is a default provision. There are steps that the government can take and i wouldnt think that it would be sound public policy. It must simply applying the instance of the terrorist context in the country of 300 plus Million People that value their privacy rights. So there has to be the legitimate ability to help keep us safe and to prosecute to the full extent of the law and the civil rights and Civil Liberties of american citizens. Is that correct . Is an email user i cannot agree more. But i think the Fourth Amendment has already reached that balance. In the analogy that i have given you when we searched that thirdparty Service Provider, it is within the rights to contact whoever they want. That includes who the evidence is. And that is why say that this is unique in the line i have never seen it before sumac as it relates to the delay, if the government concludes additional delays are warranted it provides for making that determination indefinitely. There is a recurring obligation to reach back. Okay. After that, the government can go back and request another 180 days. That is correct, there are no limitations. If we can show that there would be hung 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 we will always limit that the statutory notice rule. And there are times that they could reasonably reasonably disagree with the government as it relates to Privacy Protection and potential overreached. Yes, of course, it is, and there is time that this agreement will result in notification under this newly created rule to targets of criminal investigations to allow them to flee or destroy evidence or otherwise engage in bad behavior. I believe that it is a strong notice requirement with a strong delay procedure. One of the things that im struggling with is that we are talking about a circumstance where im going with the judge. At that same time i make it a delay. I can also make the case that before a provider notifies the subject, you have to tell the government they are going to be that and we need to expand it. And i think its a rounds approached. To make sure they reflect the current technological landscape as our technology is evolving with extremely personal information being stored. Where we travel, what we eat , what we read, where we shop, who we communicate with, all highly personal information. I certainly dont believe that the 4th amendment protections and the needs of Law Enforcement are mutually exclusive. I appreciate the witness is witnesses being here today to have a thoughtful discussion about that. From my perspective it seems like the sec has been the most local civilian agency and expressing concerns about modifying, but the fcc does not appear to have served a subpoena on a commercial provider in five years since the rorschach decision and despite that the fcc report last year and 2014 touted a record year, cutting edge enforcement action for more cases than ever before, and the firstever cases. The fcc is not issuing subpoenas of a thirdparty Service Provider for content givengiven the Record Number of cases Enforcement Actions in firstever cases all done without encroaching on the 4th amendment rights of americans why is the fcc asking congress to give it authority to get content on something less than award . We certainly have been successful. That does not mean that there arent cases that would benefit tremendously from emails that we would be able to obtain. The 4th amendment is not violated by what we are proposing which would be in order before a judge with notice to the subscriber adding the subscriber has the opportunity to raise whatever objections they have, and from our perspective that complies with the 4th amendment and balances privacy for texans because we have an objective fact to review whether it is appropriate to obtain emails in that circumstance. Members of congress. Three years in response. At least from my perspective. When the fbi has a problem they come with the staff house judiciary. In your testimony, essentially, hr 699 is really just a complication of the status quo . Thats accurate. You dont think that hr 699 . I dont think it does. Do you agree . I do. My time is about to expire. Thank you for being here. The gentleman yields back. There has been an issue and in your written testimony by the primary merger mechanism is voluntary. Now, we would all agree emergencies are there. Deny the need for Law Enforcement. However, it seems to be implying theres something missing. We did research and saw that the publishing rules transparency report received 171 emergency closures list providing data. One comeau we have looked into it but i would like to hear your answers. Why they responded only 80 percent of the requests. Are transparency report publishing for a while so that policymakers and others can get an idea of what the work is like. The numbers are relatively low. Emergency does not justify the disclosure. Often the case is the identifier that is giving it to us does not go back to any real account. There arethere are some services where you can create an account and is not verify that there is such a dress. About this account that we used to create the account that made the threat comeau we look in our system and there is no such account. We have no data to produce in response to this otherwise legitimate emergency request there was no response. That is probably the most common situation. There may be others whether request is coming in and the emergency is over but the investigation is now about a historical crime. There is no ongoing threat the loss of life which means its inappropriate to be using that authority to get the information. And we are able to say this does not look like an ongoing emergency. We can preserve the information and come back with a Legal Process that we can promptly disclose. Really quickly, are you making that determination . Thats right. Not the Law Enforcement agency. The statute says that we are allowed to disclose if we have a goodfaith belief. When you testify before house Judiciary Committee in 2013 you said that some providers make aa decision never to provide records in the absence of Legal Process. Can you identify the Service Providers that have a policy of categorically rejecting emergency request . If not why . As i stated in response to the question, i made a decision not to identify in the examples that i give specific providers because i donti dont want to highlight a vulnerability in a public forum. I will make a request and you can submitted in a nonpublic forum, but im concerned that we are making a categorical statement without categorical proof. Iproof. I can say anecdotally no, i want to know. You made a direct statement. It was not anecdotally. I did not not start off by saying anecdotally. You said in your testimony providers make aa decision never to provide records in the absence of Legal Process , and that is aa direct statement against the Business Practices of internet providers. Is it true, not true . I have been told that by providers. You dont have evidence. I would suggest that i do. I have been told by providers. I was told there was a santa clause, but i found out quickly there was not. I would suggest that is evidence. Ill just let that one sick. The Senate Hearing on this topic,topic, with regard to phone calls are not seeking authority. In seeking to get access to emails without a warrant your seeking more than the criminal authorities. Is not contradictory . I dont think we are thinking. I give you a chance to clarify. What we are seeking is the ability to obtain emails. Going to a court in obtaining a court order with notices. And i said, it is interesting. Itit is very concerning from some of the issues of anecdotal evidence that are real evidence and discussion especially the sec side, and giving your own report. Discovered comeau one last question. Fcc commissioner, i am not convinced this authority is necessary to maintain the effectiveness now or in cases that we can presently foresee. The provider with invasions of privacy. Could you speak very briefly, do you agree or disagree . I do worryi do worry that we created unconstitutional or incredibly reckless carveout for civil agencies, and my hope is that we continueo push hr 699 forward to a markup. I appreciated. This concludes todays hearing. Without objection, five legislative days to submit additional written questions for the witnesses. With that this hearing is adjourned. [inaudible conversations] [inaudible conversations] [inaudible conversations] [inaudible conversations] coming up, the headup, the head of the International Energy agency and the world energy outlook. Then a jointthat joint house hearing on claims that russia violated the Nuclear Nonproliferation treaty and Senate Debate on the reconciliation bill that would repeal parts of the Health Care Law and defund planned parenthood. Wednesday the director of National Drug control policy testifies before the House Oversight and Government Reform Committee on the work of his agency. Live coverage at 10 00 a. M. Eastern. This thanksgiving weekend American History tv has four days of feature programming. We will take you inside the National WorldWar Ii Museum in new orleans as we look back 70 years to the words and in its legacy starting with the allied invasion through dday for the fall of the third reich and the war in the pacific. They share the experience of soldiers who fought on both fronts including africanamericans. Friday night at 8 00 oclock a new series road to the white house rewind takes a look back at the president ial campaigns of ronald reagan, billreagan, bill clinton, george w. Bush and michael dukakis. Saturday afternoon at 2 00 oclock thomas tutor on the history of Arlington National cemetery, the role in creation of the tomb guard and stories about some of the notable people buried at the cemetery. Sunday afternoon at 4 00 oclock the cbs news special report on the fiveweek battle with interviews on officers, enlisted men, and the widow of a combat casualty. American history tv all weekend and on holidays. Good afternoon. Thank you for being here today. My name is sarah. Sarah. I am director of the energy and National Security program here. We are very pleased to have so many years a day as the executive director of the International Energy agency to do the presentation. Todaypresentation. Today is an important day. We find ourselves in an interesting place in the cycle. We have the kickoff of the paris climate negotiation and all of us have deep concern for the security situation that we have experienced. For those of us who have been in the energy world for a while we know is one of the preeminent experts in about every aspect command during a time i