The the ftc supports the objectives of ecpa reform and understands the need to update it to account for technological advances. And to protect consumers privacy. In bringing actions, we rely heavily on our ability to conduct thorough investigations. Of Companies Business practices. As a civil Law Enforcement agency, the fccs concerned that recent proposals to update ecpa could impede our ability to obtain certain information from ecpa Service Providers. In proposals, to obtain content from a Service Provider, the government could need to obtain a criminal warrant. Which is not available to the ftc. The proposals would require a warrant for all forms of content, even those in which a subscriber has no reasonable expectation to privacy. We are concerned that requiring a criminal warrant in three situations would impede effectiveness. Were talking about things like no longer running advertisements, previously sent spam, and ads on a mobile device. This content is critical to ftc investigations. Before determining whether a target has made a false representation, we need to find the advertising or promotional material that contains the representation. The in many instances, the scam artist change websites and electronic marketing materials frequently. When Commission Staff investigates complaints about a website, the website currently viewable to the public may be different from the one that the consumer complained about. Kucht ec we have not used the tool often. Most of time our investigators are able to track down a targets old marketing materials without needing to seek the materials from the provider. But the increasingly fleeting nature of advertisements, makes it quite likely we will need to compel advertising materials more often. An exception from the criminal warrant requirement in proposed legislation from commercial content that promotes a product or service would enable to the commission to obtain such commercial content. At the same time, such an exception would have no impact on privacy rights, because the materials would be purely commercial and have been affirmatively published by the target. As a result, the target would not have a reasonable expectation of privacy with respect to government access. The second situation which should be exempted from the criminal warrant requirement is content with the consent of the customer. As Cloud Computing becomes more widespread, it will be increasingly important for civil Law Enforceme menment agencies compel an ecpa provider. For example, manipulation schemes where if we had the authority, we would certainly do that. When a customer consents to disclosure to the government, the customer has no reasonable expectation of privacy. Third, a criminal warrant should not be needed when the ftc has compelled a target to produce content held by a Cloud Service provider. Under these circumstances, the ftc should be able to seek a court order directing the targets provider to release the content. In conclusion, thank you for giving the commission an opportunity to describe the importance of Electronic Communications in our investigations and the ways in which proposed updates to ecpa while important could hinder our Law Enforcement actions. Thank you all for your testimony. Ill start and senator leahy will be next with our questions. Chair woman white has told us that the fccs ability to carry out enforcement responsibilities and conduct investigations has been significantly curtailed as a result of the warsaw decision, but weve been told that the fcc has not provided any examples of cases where access to Electronic Communications have been cut off due to that decision or would be impacted if the pending reform bills were enacted. Can you provide any examples of the type of case or investigations that have been affected since that case decision due to providers requiring a warrant when the government seeks to collect chronic content in a civil investigation . Yes, senator, obviously, i cant talk about the details of ongoing investigations, but i can say that there are an um in of investigations in which, if we, if we were exercising our authority under ecpa, we would do that. For example, manipulation, touting schemes. I cant necessarily say it would produce emails that would dramatically further the investigation because right now im not able to know what it is that emails we would obtain through that kind of process, but i can definitively say that there are investigations ongoing and there were investigations even prior to the warshack case where we were exercising authority that were advanced by obtaining isp emails. Along those same lines in your written testimony you suggest that a warrantonly requirement for obtaining Electronic Communications from an Internet Service provider, quote, could create some obstacles in further civil raw enforcement cases. Would you provide us examples of the type of cases and situations the ftc is concerned about that would create obstacles to future civil Law Enforcement cases . Of course, senator. The types of cases were talking about are those instances where the target or the defendant is trying to be evasive, is not responding to discovery or to our civil investigative demands. T the, so thats one classification. The other class of cases are where the target is an outright fraud, like a flybynight scam. And we dont want to contact them directly. You know, if we contact them directly, they may flee. They may destroy evidence, destroy records and hide assets and keep us from being able to get money back for consumers. Okay. Theres a, this would be to any or all of you. Theres a perception that what youre really asking for is a mechanism that lacks judicial oversight and sidesteps the target of a civil investigation without any notice or hearing. In fact, the written testimony provided to us from Google States that you are proposing to quote, amend ecpa so that agencies can bypass the target of or witnesses in civil investigations. End of quote. For any or all of you. T is this a fair characteristic of what youre really proposing . Senator, it is not. We are asking for a mechanism to allow courts to compel this information from providers where necessary and has been, as has been mentioned, this is information that we try to sdet from subscribers. Where we cant get it from subscribers, we really do need it, and there are ways of protecting privacy in ensuring there is a certain process. Andrew . And i would add that the mechanism that we are proposing is judicial procedure, we would give notice to the subscriber and allow them to come in and offer objections. And from our perspective, thats more protection than a warrant proceeding thats ex parte where the subscriber is not present. Do you have anything to add . I would agree that the judicial mechanism that we are proposing would require two things. Wed have to go to the subscriber first, and only when we are unable to get the information from the subscriber could we then go and seek a court order. So its two additional protections. Wed have to first get it from the subscriber, and then there would be judicial intervention. Senator leahy . Thank you. First off, theres a great deal of consensus for the need to update ecpa. I would ask consent that these letters be placed in the record in support. Thank you. They range from the chamber of commerce, former director of the fbi sessions, civil rights and many others. Let me ask you a question. The fbi now use warrants when it seeks the content of email communications in criminal investigations. Regardless of the agency email, is that correct . That is correct. So this bill that senator lee and i have would not change the fbi procedure in that regard. The bill would not change the procedure for criminal, obtaining disclosure through a Third Party Provider of stored email regardless of the age. Thank you. Should a Privacy Protection thats afforded to email or text messages, should that change . If theyre older than six months . Or if theyve been opened . No, we dont think theres a principle reason to treat email differently depending on the age. No, i dont think that we see any distinction there. Mr. Salisbury . We agree. Thank you. You know, we talked about the United States versus warshack. Ill ask the same question to both of you. Since that ruling, has the fcc or the ftc obtained email content through a subpoena issued to a thirdparty provider . We have not, senator leahy, but weve done so in an excess of caution, and i think in deference to the rye form discussions that have been going on in congress. Our view and in deference of a fiveyearold sixth circuit case which has not been overturned . No, our view is that warshack does not deny us the authority to obtain emails through an admin stradministrative speubpo. Mr. Salzburg . We have not sought email content either before the warshack decision or since. And you have permanently sought a legislative solution or change from congress in the past five years . No, we have not sought a solution until now. Weve obviously offered over the last few years to have op goig ongoing discussions. Have you made a proposal . We have. Can you give me a copy of the proposal you made . I dont seem to recall that. Weve had discussions with staff about this issue over time. Beginning five years ago . Or just since, or just since senator lee and i looked like we might actually get something passed here . No, i can only speak to the two and a half years i have been director of enforcement. Weve had discussions with the staff throughout that period of time. And you sent up a concrete proposal . Weve been discussing proposals that the staff have you sent a concrete proposal from your agency . Our view is we want to be responsive to proposals that congress is providing. So to the extent that staff or particular senators or congress men have offered us what they are thinking about, we have offered them our thoughts o n those proposals. Are you seeking wire tap authority for your civil investigations . No, were not. You do want to be able to read emails without a warrant. What were proposing, senator, its some sort of judicial proceeding that would find some sort of standard, whether it would be some sort of standard that would allow us to obtain emails with notice to that subscriber with notice of the proceedings so that the sub describer can raise any concerns that they have. What about listening to your targets phone calls . No, we are not proposing that. Wouldnt that be more efficient, more effective . Senator, we, we are not seeking wire tap authority. That is something that the criminal authorities have that we do not. That is not something were seeking. All right. How many, how many federal, local and state agencies have Civil Authority to allow them to issue subpoenas for records . Thank you for that question. Certainly at the department of justice, there are a number of Civil Enforcement functions, including antitrust, tax and environment, civil rights. Since warshack, they have been unable to get stored content from providers, and this has hurt their investigations and sort delay and make it difficult in instances where they couldnt obtain information from subscribers. Ply time is up. Im going to have a couple questions for the record on that. Thank you. Now senator hatch, let me read here, it would be hatch, whitehouse. And then it would be purdue, and id assume wed go to the democrat senator franken, and tillis of hose wthose who are h now. In your written testimony, youve stated that the department had concerns about legislative proposals aimed at safe guarding data stored abrought from improper government access. As you know, the Electronic Communications privacy act is silent on the privacy standard. U. S. Officials must satisfy in order to access data stored abroad. And yet the federal government has taken advantage of the statutory silence to apply its own standard. What is the legal basis for Law Enforcement agents to use ecpa warrants to obtain data stored overseas . Thank you for that question. Thank you for that question, senator. Theres longstanding Legal Framework that allows the government to serve compulsory Legal Process on United States companies to require them to bring back information that is stored abroad. And the concern with proposals that would change that framework is that it would take away an option that has long been available under that framework and would replace it with International Cooperation, which is not an adequate solution, because those, those agreements, that kind of cooperation doesnt exist everywhere. Only about half the country, as we have agreements with. And because even when we can use those agreements, it takes a really long time and can delay investigations in times when we really need it. I disagree with you, thats why i introduced the leans act, for Law Enforcement to access data stored abroad or overseas. My bills trying to help your efforts, and id appreciate any suggestions you have that might make it a more workable bill or might improve it or help you in your work. We look forward to working with you. Thank you. If federal officials can obtain emails stored anywhere in the world simply by serving a warrant on a provider subject to u. S. Process, nothing stops governments in other countries, including china and russia, from seeking emails of americans stored in the u. S. From providers subject to chinese and russian process. In fact, the lawyer who has litigating the Microsoft Case on behalf of the government acknowledged last week that the ability for a Foreign Government to require disclosures of a u. S. Provider, quote, should be of some concern. Unquote. Now, are you concerned about the far reaching or reciprocal consequences of governments current position on the extra territorial reach of u. S. Warrants . Thank you for that question. This is a challenging issue, one that the department is actively considering. Whatever the solution is, we dont think that the solution should involve deciding conflicts of laws in a way that always works against the United States. Historical historically, courts have been able to weigh government interest in other factors in coming to decision on these issues. And the concern is any regime that would decide all matters of conflicts of law against the u. S. In every case. Well, the mutual process facilitates formal agreement for sharing evidence between the United States and foreign countries. Do you agree the process has proven slow and cumbersome to use . It certainly is slow and cumbersome for us to get information from other countries, which is part of our concern. And the incoming process, we agree that there needing to be progress made and are working on progress technological and otherwise, and the department has requested resources to improve things further. In your view, what can congress do to improve the process, and how does another Country Access data stored here in the United States . So, again, these are really challenging issues, and we look forward to working with you on them. One thing that, if clear, with the process, it is not a onesizefitsall process. And because it is so complicated it requires an approach that takes into account the way it is operating now, and we very much look forward to working with you to streamline the process. I look forward to working with you as well. And i hope we can streamline this process and make it work not only for you but for businesses and others as well. Thank you. Senator whitehouse . Thank you, chairman. In evaluating in question of civil access to content maintained by the Service Provider, i take a step back to the question of a criminal warrant. A criminal warrant is obtained by a Government Official going before a federal judge on an ex parte basis. And getting the judges consent to get access to the material involved. That protection is there,s understand it, because of the immense power that criminal Law Enforcement gives to the government, power for instance of incarceration. We even have a federal death penalty. So, from the very beginning, the founders constructed a process that limited arbitrary access by the government when it had those terrible powers in its hands. Doings the government have any such powers with respect to Civil Enforcement . It does not. Civil enforcement lacks warrant authority. And what youre proposing is that just like a warrant, the government would have to go before a federal judge in order to get access to the data for Civil Enforcement purposes. There are a number of ways to do it, but yes, having a court be able to compel that evidence. A court order would satisfy you . Yes. And in a number of circumstances, your colleagues here on the panel have suggested that the subject might actually be, the subscriber might actually be notified first or that there might be notice to the subscriber so it would not be an ex parte proceeding. It would be a proceeding in which the individual whose privacy interest was involved would have a right to appear, correct . Thats correct. All right, now what happens in the case where you talked about where for a variety of reasons you dont want to reveal to the misbehaving party that this investigation is under way, because theyre likely to abscond or hide assets or destroy evidence or whatever . Do you want some form of ex parte process like a warrant provides . Where the civil agency could say, look, these are extraordinary circumstances. This is why we need access ex parte to this information and try to convince the judge of that . Were not actually asking for that authority. So why are you at that uk abo