A renewed focus on preventing domestic terrorism threats won't stop the House from holding a hearing next week on legislation that would bolster email privacy rights.
The House Judiciary Committee plans to proceed with a Dec. 1 hearing on the Electronic Communications Privacy Act. The bill, sponsored by Rep. Kevin Yoder, R-Kan., and Rep. Jared Polis, D-Colo., would require law enforcement agencies to obtain warrants before examining private email or other stored electronic communications, including text messages and videos.
Lawmakers have been trying for years to get the bill passed. It would update an outdated law, passed in 1986, before the advent of email or the storage "cloud."
But proponents have been hampered by objections from federal civil agencies, including the Securities and Exchange Commission, which lack the power to obtain warrants and fear their investigatory abilities will be harmed by the bill.
"Electronic communications often provide critical evidence to our investigations, as email and other message content, including text and chat room messages, can establish timing, knowledge or relationships in certain cases, or awareness that certain statements to investors were false or misleading," Andrew Ceresney, the SEC's Division of Enforcement Director, told the Judiciary Committee in September.
The legislation also comes at a time when lawmakers have expressed fears that privacy laws could prevent law enforcement from thwarting a domestic terrorist attack like the deadly ambush that escaped early detection in Paris this month.
Some senators, for example, have called for changes that will allow law enforcement to bypass encryption technology, which makes electronic communication virtually inaccessible.
And Senate Majority Leader Mitch McConnell, R-Ky., has suggested the recently passed measure ending the Foreign Intelligence Surveillance Act's (FISA) warrantless, bulk data collection by the National Security Agency deserves a re-examination to ensure intelligence officials have the ability to detect terrorism plots like the one carried out in Paris.
There is no specific commitment from GOP leaders that the legislation will receive a vote soon. House Judiciary Committee Chairman Bob Goodlatte, R-Va., agreed to hold a hearing on the Yoder bill, but he is not a co-sponsor and has not scheduled panel consideration of the measure.
Electronic privacy advocates say lawmakers should not let terrorism fears hurt their support for the Yoder-Polis legislation, and supporters in Congress say the bill walks the line between privacy and security.
"It's imperative that any reforms made to the law protect Americans' privacy and provide law enforcement the tools they need to do their jobs and keep us safe," Jessica Collins, a spokeswoman for Goodlatte, told the Washington Examiner.
Julian Sanchez, a senior fellow at the Cato Institute, a libertarian think tank, said lawmakers could easily confuse the issue of email privacy and terrorism prevention. But, they shouldn't, he added, because terrorism investigations are covered by the FISA laws.
"This isn't relevant to terrorism investigations, and it's really only belatedly formalizing the process the courts have already said the government has to follow, and indeed, is mostly already following," Sanchez said. "It's a long overdue step, the main benefit of which is to provide clarity and uniformity about the applicable standards."
"This bill has been very carefully crafted to exempt any terrorism-related legal authority," Chris Calabrese, vice president for Policy at the Center for Democracy & Technology, an email privacy advocate, told the Examiner. "All it really says is that before law enforcement, such as the Department of Justice or FBI, or state or local police, can read your Gmail, or email stored in the cloud, they need to get a search warrant."
Calabrese said most federal law enforcement, including the FBI, obtain warrants for email and other electronic communications.
The Yoder-Polis bill, Calabrese said, would ensure the law is uniformly applied to include state and local law enforcement as well as small companies that may require warrants before they turn over emails into investigators.
"Once you start to get into someone's email inbox, it can reveal incredibly sensitive information," Calabrese said. "It's basically a diary of our lives. That is why it is so important to have a warrant standard."
Calabrese said he is hoping the 300 cosponsors in the House will finally provide the bill with the momentum needed to win floor consideration and passage.
Senate consideration could take longer.
Sens. Mike Lee, R-Utah, and Senate Judiciary Committee ranking member Patrick Leahy, D-Vt., have co-sponsored identical legislation, but McConnell has made no mention of plans to take it up anytime soon. McConnell did not support the NSA reform legislation and worked hard to keep it off the Senate floor before giving in to pressure from a majority of Senate lawmakers.