That email they send their loved one has the same constitutional protection as the love letters in the past but unfortunately the laws that govern when police have access to con dent have not been updated since 1986. In the interim there have been courts said police have to get a warrant before they can get emails and facebook messages. This puts that protection into the law. Consistent with the policy adopted by fbi. Its what google and other major providers already require but this putses that requirement into the law, eliminating any ambiguity about the protections that apply to peoples private, sensitive digital information. Host what is the legislative status of an update . Right now the house has passed 4190 so supported by republican. What does that bill do . That bill would put in place the warrant requirement, and basically say that anytime that police want to get your emails, other types Digital Content they have to come to providers with a warrant, and it passed with unanimous support in the house, and back bid rightwing groups and leftwing groups and the bill is in the senate, and were waiting for it to move on its path and become law. Why is it sitting in the senate . Its slated to be taken up next week there have been a host of amendments proposed. Many amends are unnecessary, many are controversial, but the hope is that this bill moves cleanly, given the broad base of support not non the house but the public at large who want to feel their rights are protected in the digital age. Also joining us is brian porter, Commonwealth Attorney or state attorney in the commonwealth of virginia. Mr. Porter, what do you think about the legislative efforts to update the Electronic Communications privacy act. Well, interestingly enough i dont really think im far apart on miss julian any she just stated ghoul yanis position. We have been proactive making sure warrants are obtained and trying to get peoples communications, particularly emails. Over the course of my 15 years as a prosecutor on a number of occasion us if i have obtained emails and every single time we used a search warrant in an effort to obtain that. What is important and what was said by miss the love letter written electronic, had additional protections and the investigative Law Enforcement field thats what our main concern is, make sure that the Electronic Communications are provided with the same level of protection, not an extra level of protection, beyond what you expect your home. What is the legislative effort to add an extra layer . Well, one of the thing that concern us as its currently written in the revised before the senate is it goes not allow the exceptions to he search warrant requirement used by Law Enforcement, in a critical missing persons case 0 suns personal safety might be in danger. There are very limited circumstances that a Police Officer or federal agent might be able to access somebodys written document, axis their home and car without a search warrant in emergent situations and in one of our main areas of concern. One other area of concern for news the investigative field in the Law Enforcement arena is the fact that really isnt any industrywide standards for providers. In other words i can tell you from personal experience its a different experience dealing with facebook, for example, than google in real estate to the amount of information we get back, the rapidity in which its given to us and the obstacles with dealing with the providers. We would like to see the when it is amended and enacted, would give us some kind of standards so we have some determination when information will be given to us and under what circumstances. Before we introduce or guest reporter whacker reporter, what did you hear. The issues that bryan raised are dressed in the legislation. Its not providing more protections more than a love letter. Its providing equivalent protection of the constitution in response to the concerns about emergencies, right now, the existing standard is that if police have an emergency they dock to a provider and say ive got an information. I need information, and providers routinely respond to those questions. Many providers now have a team on call 24 hours a day, in fact to respond to those requests. The legislation pending to preserve that existing infrastructure, and importantly it does one of the things that we heard that is important, which is setting standards for providers to follow and qualifies a warrantes if the right process and the right standard. So its a step forward into creating clear standards that companies can fall can follow. In parter. I guess we have some misunderstand organize disagreement exactly what is contemplated. Going through the amendment process perhaps the end result might address our concerns. These are areas as Law Enforcement were seep as being resistant to the idea of having warns for this information. Thats at not accurate from any standpoint. I think have been forward thinking at the National Attorney association has been forward thinking in accepting that in almost every circumstance a warrant based on probable cause that evidence could be found in electronic records is a way to go, but this is a huge change. A very complicated bill and we are asking that the senate give Due Diligence and understand the arguments of Law Enforcement. We dont use this type of information, at least at the state level to investigate petty crimes. We use the information that we obtain from these ims of recordness combating Drug Trafficking organizations, Human Trafficking organizations. Ive and in homicide as well. So you have real serious concerns here about both the level of crime and the safety of human beings issue and want to make sure those issues adequately dressed. Joining our conversation is amir nassar of the Morning Council and he covers technology. Question that in the senate now, the Judiciary Committee postponed the vote because of concerns of many. Senator john cornyn had a couple of amendments. One of them was to help Counterterrorism Operations and the other is actually i guess talking about dealing with emergency situations. Im curious from both of you what your thoughts are on those amendments, whether they fix legislation, whether they undermine it. I have to see the final version in order to be able to accurately answer your question. All were asking is that the amendment that is finally passed, if there is one adopted, that basically encomp pauses the current exigent circumstances and codifies that. So im talking about true emergencies. Situations in which a person may be with alzheimers, missing and the police need to locate this person immediately because they might be in physical danger, dont have time to obtain a search warrant, and we dont want anyone to be harmed with an hours long wait in order to get a search warrant from a magistrate. So talking about that. Talking about underwaged people who might be in harm or at risk of harm, and talking about the seriously dangerous felons in a short period of time if we have basic information about where they might be. I think youre right. The first question to ask is on a bill that passed 419 to 0 why we are talking about additional amendments when theres such a broad base of support. With regards to the two amendment that senator cornyn raised they have a host of privacy concerns. Some of them dramatically expand the Surveillance Authority of the fbi and allow them to without court order get information about individuals browsing history, what web sites they visit, what the might click on, information about the to and from of emails they may send, Location Information that might be associated with someones ip address. I think the average american would be very concerned to know that the fbi could get that information without going to court, particularly given the history of the abuse we have seen with these programs. For example, you have the Inspector General noted that these typeofNational Security types of National Security letters have been abused in the past and have one used in situations they shouldnt have been used. Goodnight the controversy and the concerns with this amendment this is just not the bill to put that amendment on and its something that should be subject to robust debate, and i am confident that after that debate, members of congress will say, well, its the a problem. The Second Amendment that senator cornyn puts forth would require that providers, Companies Like google and microsoft, respond to emergency requests even in cases where they felt that no emergency existed, even if they had evidence that a Law Enforcement official was trying to abuse the type of exception, and what we see in the past is removing the ability of providers to resist requests as improper is a real problem because there has been abuse of these exceptions in the past. So, for example in 2010 the department of justice Inspector General examined use of the socalled emergency exceptionses of imagine security context. And what they found was there had been abuses. Cases where requests were put in, circumstances that werent truly exigent, and its a problem when youre removing the protections against to the types of abusive requests and then there are no protections to ensure if there is abuse, that information isnt used in a civil case, isnt used in a criminal case, but someone has the ability to say, no emergency existed. My rights have been violated and heres the redress i would like. Barring the Civil Liberties concerns, is it concerning for the privacy advocates that senator cornyn is obviously very powerful in the senate but also a cosponsor. Does that make Civil Liberties advocates wary Going Forward to a potential committee or full senate vote on the underlying bill . Senator cornyn is a cosponsor of the legislation. I think that these particular amendments are concerning. I think that the senator and other members of congress have heard those concerns, and really i go back to the house vote. This is a bill that pasted 419 to 0. Its nobrain for the senate tike it up and pass. Its rare you see a piece of legislation withsuch a broad base of support, individuals and groups across the political spectrum, and for which history also says is tells president lie needed and supportive of. Mr. Porter, to the house bill underline a few changes in committee that many privacy activists werin not enenthralled about. The communication requirement, come powers are main it. Im courteous from a Law Enforcement standpoint how do you feel about that bill . Was that still insufficient . I think its a very good question. I think again, Law Enforcement the law that is allowed any electronic records by the way almost every Major Investigation today, electronic evidence is part of the evidence. Those types of providers that maintain and collect evidence, they need to be subject to same rules as the Banking Industry or a Storage Facility that has physical objects as evidence. The shouldnt be additional protection beyond what the constitution requires. This particular class of evidence. Thats very difficult because in most cases, when youre talking about physical objects that a human being or perhaps a company, we have the intervening layer of having providers involved, and for instance, the point that made a few minutes ago about having providers giving the opportunity to basically reject requests for records. These providers have business concerns, at their heart. Theyre not worried about whether or not the investigation is going to go well or whether its not actually a serious criminal smooth be prosecuted with theft. Theyre worry bet sell thing suspect making sure that the client base is happy with the protections and its Good Business for them to be seen fighting the good fight. Its till a problem for us. With regard notification requirement, thats far beyond what is required for any other search warrant. A search warrant for somebodys residence, a bank vault, safety deposit box. Notification requirement. Obviously in most cases a search warrant for records and that might very well get ahold of that if the prosecutor is going to be provided a copy of the search warrant but the idea we might have to tell a porn nothinggrapher or human trafficker or a criminal street gang theyre being vested before were actually read you to bring charges has a Chilling Effect on all of Law Enforcement. Thats where our concerns are in the bill. Im glad they were dressed. The Fourth Amendment rides to right of the people secure in the person, housessers papers and effect, against unreasonable searches and seizures shall not be violated and no warrant shall issue but upon probable cause, and particularly deciding the place to be describing the place to be searched or the person organize things to be seize should that apply uniformly to Electronic Communications . I absolutely agree it should. I would make a couple of points about the Fourth Amendment. Its very limited in what is it actually says, search must be reasonable. That doesnt mean that every search if conduct hayes to be done pursuant to the warrant. The so in some circumstances, emergency situations that we were talking earlier with a critically missing injured person or a dangerous felon needs to be caught before they can do more harm, those type of emergency circumstances is actually reasonable to conduct the search without a warrant. So i agree with my counterpart here, in almost all circumstances, in the vast majority of circumstances, when we have the ability to resort to legal process, obviously thats the way it should be done but a reasonable search, some sort of warrantlessly and emergency situations. Thats the law for a bank vault, safety deposit box, somebodys home should be the same for this question on notice. This isnt in the bill but the right to be notified when the government is requesting your information is a requirement of the Fourth Amendment. You can go to court and say id like return of my information. You can government surveillance and sources that are unlawful and improper and this a practical matter. When you have a love letter spored in your disk you knew the police went to get the bert a because lad had to ask permission to enter your house. The fact that this bill doesnt include a notification requirement, does not require police to notify you either immediately or in cases where it might jeopardize an investigation, means that as practical matter if a police have a decade of your emails and youre not charged with a crime you anyway never know so you can go to court and get redress. Thats something that congress will have to deal with in the future and that is a protection that is critical and should be included. I think its interesting because now you have microsoft doing the Less Government for their frequent use of gag orders, barring us from notifying individuals when theyre emails, messages, had been seized. There are only one of many Tech Companies thea that have gotten involved or trade groups said we want to change this. How do you think that contributes to the whole discussion considering that like i said earlier they the gate keeners of the. Goes back to the earlier point if the providers are seeing out there the prism of Good Business, wanting to make theyre customers happy. Inscription is part of that. Good security for their accounts, obviously, very important to people. And i dont think theres anything wrong with that. Income thats to be expected. Its an unusual circumstance where so mach really relevant information is in the hander of third parties. Think we have been more forwardthinking than were sometimes given credit for in the Law Enforcement field. Theres clear argue toll be made theres no Fourth Amendment protection when people give their information to Third Party Providers like an email provider or a cell phone provider. Im not making that agentment here because i agree the law needs to change Going Forward as communications and privacy concerns change over the years but you have to start with that issue. Now, it was brought up when you had a love letter, the police would come into your house and you would know they have taken your love letter. Thats not necessarily true. What if you kept your fleeter safety deposit pockets and employs got it when you werent looking there is no notification requirement. The person is ultimately charged with an offense, they wish to use the evidence, theyll gate copy of the search warrant and have an able to fight that in court but if youre talking about hypothetically, a child pornographyer sometimes it can take 18 months to get the investigation through. If the provisions for notification had gone through as they were written in the original bill, as soon as search warrants obtained, that six months or whatever time period in the bill starts to tick immediately and at the end of six months if were not ready to charge we have to notify the person elm obvious import is the evidence will be destroyed. So thats a real concern and, again, what were asking for is the same