NAPO Update!

House Lawmakers Ignoring Law Enforcement Concerns
with ECPA Amendments

The House Judiciary Committee is scheduled to markup H.R. 699, the Email Privacy Act, a bill that NAPO opposes, on April 13th. NAPO, together with other law enforcement organizations, has been meeting with members of the House Judiciary Committee to express our serious concerns with the legislation in its current form.

While NAPO does not object to the requirement for law enforcement to obtain a warrant for the contents of stored communications, H.R. 699 would do much more than that. NAPO believes that several other provisions of the bill would place an undue burden on law enforcement’s ability to gather evidence that can help solve crimes. Furthermore, the bill does not address the real and growing challenges faced by investigators and prosecutors in obtaining electronic evidence when they attain the required legal process.

The bill in its current form would create significantly more protection for stored emails than the protection afforded to the contents of someone’s house. Digital evidence is a part of nearly every crime scene today, and in our meetings we are strongly urging Committee members to understand the other provisions of the bill which extend its reach far beyond a simple “warrant for content” requirement.

There are two issues of particular concern. The first is the unprecedented requirement for law enforcement to serve a warrant for electronic evidence directly on a customer or subscriber who is under investigation – and even describe details of the investigation – creating significant risk of evidence destruction, flight, and threats to the safety of investigating officers. The second issue is that the bill does not contain sufficient exceptions to the warrant requirement for urgent situations like an imminent threat of physical harm, likely destruction of evidence, consent by a victim or a witness, or public safety emergencies that are not necessarily part of a criminal investigation (missing child, missing elderly adult).

H.R. 699 is not just a “warrant for content” bill. It goes far beyond that in ways that would make it harder for law enforcement to investigate crimes. While NAPO continues to work with Committee members to ensure that the Committee narrows the scope of the bill and finds a balance between protecting electronic privacy with the needs of law enforcement, we are facing an uphill battle. H.R. 699 has 314 cosponsors and the coalition behind the bill feels that since the bill has such significant support as currently drafted that they do not need to compromise. The law enforcement community was not consulted in the drafting of this legislation and it is imperative that Congress listen to our concerns and amend this bill before it goes too far.

In speaking with Committee members’ staff, it is evident that many members signed on in support of the bill with the provision that it would be amended during Committee mark-up. NAPO is working to ensure that those members stand true to that statement and support amendments to ensure law enforcement can do its job and protect our nation’s citizens while upholding the need for electronic privacy.