Congressmen Move To Protect Silicon Valley, But Ignore Individual Privacy

(Photo by Mark Wilson/Getty Images

Daily Caller News Foundation logo
Font Size:

Congress’ proposed “Email Privacy Act” lets federal agencies continue subpoenaing citizens’ emails, bank account numbers and phone call records without first demonstrating probable cause to a judge and getting court approval for a warrant.

But that isn’t something you’ll read in a press release from any of the 300-plus members of Congress sponsoring the bill.

The proposed “Email Privacy Act” updates current federal law by requiring agencies to get a warrant for email content from Internet Service Providers (ISP), something current law doesn’t require after an email is 180 days old.

But the proposed legislation also allows agencies to continue demanding emails through administrative subpoenas from individual Americans so long as the agency deems that information relevant to its work. A subpoenaed email user can always appeal that subpoena to the courts, but as The Daily Caller News Foundation documented, appeals rarely succeed.

“We issue subpoenas to individuals all the time for their email,” Andrew Ceresney, director of the Securities and Exchange Commission’s enforcement division, told the House Committee on the Judiciary in a Tuesday hearing on the proposed bill.

The bill also authorizes federal agencies to obtain sensitive information — including the names of people communicating electronically, the times of phone calls, and users’ bank account and credit card numbers — from third-party companies without a judge-issued warrant and without the customer ever knowing.

“Through this bill, Congress and lobbyists expressly acknowledge the Fourth Amendment requires probable cause and judge-signed warrants to obtain emails, but it’s almost fairy dust,” Mark Fitzgibbons, a lawyer for American Target who represents companies against judgeless subpoenas, told TheDCNF.

“Faceless government bureaucrats in hundreds of federal and state agencies will obtain countless private emails — and even non-electronic ‘papers’ — directly from Americans, businesses and charities without probable cause or judge-signed warrants by using costly, disruptive and intimidating administrative subpoenas. This bill protects Silicon Valley, but not your work place, your home computer, or even your smart phone.”

Top members of the House Judiciary Committee mostly ignored those concerns Tuesday.

A spokesman for committee chairman Rep. Bob Goodlatte, a Virginia Republican, said he “has long been concerned about agencies abusing their power against citizens. That is why he is working on ways to enhance the protections afforded U.S. citizens under current law when the government seeks information. Subpoenas have been held to be constitutional under the 4th Amendment’s reasonableness clause.”

Michigan’s Rep. John Conyers, the committee’s ranking Democrat, declined to respond when asked by TheDCNF why he supports a measure protecting Fourth Amendment rights when ISPs are involved, but not when individual Americans are. Also declining to respond were Reps. [crscore]Jerrold Nadler[/crscore] and [crscore]Zoe Lofgren[/crscore], Democrats from, respectively, New York and California.

“Our goal under the Electronic Communications Privacy Act is to modernize email protection so that it is fully consistent with the Fourth Amendment. To go further could unnecessarily hinder law enforcement,” Wisconsin Republican Rep. James Sensenbrenner, chairman of the House Judiciary Subcommittee on Crime, Terrorism, Homeland Security and Investigations, told TheDCNF.

The Fifth Amendment should protect Americans against turning over any self-incriminating evidence to the feds, said Paul Rosenzweig, a visiting fellow with the Heritage Foundation who testified at the hearing.

“When they’re actually writing to the originator of the missive, the person who so originates it may be compelled to give it over either by warrant or subpoena,” Rosenzweig told TheDCNF. “The difference of course in either case is that the subscriber gets notice.”

Follow Kathryn on Twitter

Content created by The Daily Caller News Foundation is available without charge to any eligible news publisher that can provide a large audience. For licensing opportunities of our original content, please contact licensing@dailycallernewsfoundation.org.

Content created by The Daily Caller News Foundation is available without charge to any eligible news publisher that can provide a large audience. For licensing opportunities of our original content, please contact licensing@dailycallernewsfoundation.org.