 |
Dean of the U.S. House
of Representatives
John Conyers, Jr. |
In 2014, in a unanimous ruling delivered by Chief Justice Roberts, the Supreme Court concluded that the police may not search a cellphone without first demonstrating probable cause.
Citing an obvious Fourth Amendment interest in the vast amount of data we store on our personal devices, the Court wrote:
“The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.
“Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant.”
With that decision, the Court took a bold step towards reconciling the Fourth Amendment with the advent of modern communications technology.
Today, the House takes a similar step to reconcile our interests in privacy and due process with the realities of modern computing. We do so for the second time.
H.R. 387, the “Email Privacy Act,” recognizes that the content of our communications, although often stored in digital format, remains worthy of Fourth Amendment protection.
And to the investigators and government agents who seek access to our email, our advice is accordingly simple: get a warrant.
It is an idea whose time has long since come.
This bill will allow us to move to a clear, uniform standard for law enforcement agencies to access the content of our communications—namely, a warrant based on probable cause.
H.R. 387 also codifies the right of the providers to give notice of this intrusion to their customers, except in certain exigent circumstances that must also be validated by the court.
We should note the absence of a special carve out from the warrant requirement for the civil agencies—like the Securities and Exchange Commission and the Internal Revenue Service.
Last congress, in the Judiciary Committee, we reached quick consensus that a “civil carve out” of any kind is unworkable, unconstitutional, or both.
I would have preferred to keep the notice provisions of the original bill, which are absent from the version we reported from committee.
In the digital world, no amount of due diligence necessarily tells us that the government has accessed our electronic communications.
The government should have an obligation to provide us with some form of notice when intruding on a record of our most private conversations.
But I understand that not everyone shares this view—and I am willing to compromise, for now, in order to advance the important reforms that we will adopt today.
I am proud of the work we have done. Last Congress, the House passed this legislation 419 to 0. I hope that, today, we can send our colleagues in the Senate a similarly strong signal to pass this bill.
This legislation is several years in the making, and it should not be delayed any further.
Accordingly, I urge my colleagues to support H.R. 387, the Email Privacy Act, and I reserve the balance of my time.
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