WASHINGTON — Two bills sponsored by U.S. Rep. Kevin Yoder advancing through the House have drawn both the favor and ire of civil liberties advocates, though the lawmaker insists no tension exists in his support for the measures.
One bill would require law enforcement to obtain a warrant before searching through older email and other communication stored on third-party computer servers. Yoder has pushed the bill, dubbed the Email Privacy Act, for several years, and the House is set to vote on it this week.
The other bill — the Kelsey Smith Act, named after the Overland Park teen who was abducted and murdered in 2007 — would speed law enforcement access to cellphone location data in case of emergencies. Police, without a warrant, would be able to more quickly locate a device, and, hopefully, anyone missing and believed to be in danger.
One measure makes it more difficult for police to access electronic data, while the other makes it easier. But in an interview in his office on Capitol Hill, Yoder emphasized the idea of balance in protecting civil liberties.
“I think the beauty of it all is it shows we can try to strike that right balance,” Yoder said.
In the case of the Email Privacy Act, lawmakers are declaring that without a warrant and without probable cause, the federal government can’t collect personal emails, Yoder said. By contrast, he emphasized the Kelsey Smith Act applies only in emergencies.
“It shows that we’re not just completely swinging the pendulum to one side so far, like on maybe the Email Privacy Act, that we don’t find that right balance when it comes to a missing person,” Yoder said. “So it is interesting that they’re happening at the same time — it’s not coordinated — but I think it does show our ability as leaders to try to strike that right balance.”
Civil liberties advocates have gravitated to the Email Privacy Act because it would expand the amount of email and other digital communication protected by the Fourth Amendment online. Currently, law enforcement doesn’t need a warrant to search for emails older than 180 days.
The power to search older emails stems from a 1986 law, the Electronic Communications Privacy Act, enacted well before the modern internet of Facebook, Twitter and cloud-based email. In the House, the bill has drawn more than 300 co-sponsors — notable in an often hyperpolarized Congress.
That isn’t to say outside supporters see the legislation as a perfect bill. The American Civil Liberties Union told lawmakers earlier this month it wants provisions allowing for the suppression of illegally-obtained evidence and greater privacy for location-based data even as it endorsed the overall measure.
“This bill contains critical provisions necessary to ensure that Americans’ adoption of modern technologies — like email and cloud storage — does not mean that they must sacrifice Fourth Amendment privacy protections, such as the requirement that the government provide notice and obtain a warrant before it accesses electronic content information,” the ACLU said in a letter to legislators.
The House is scheduled to debate the Email Privacy Act on Wednesday. If it passes, it will be the furthest the legislation has advanced since Yoder introduced it in May 2013.
The bill’s introduction came about a month before documents provided to news organizations by Edward Snowden revealed the extent of government surveillance in the U.S. and around the globe.
The Snowden revelations put the issue of digital privacy on the map, Yoder said. The Email Privacy Act doesn’t deal with national security or domestic surveillance, however. Yoder indicated that focus has helped it garner support in the House.
“It doesn’t really enter into the safety-security balance we’re always debating in this capitol. So that’s what makes it, I think, a much broader coalition because of the lack of a national security issue on it,” Yoder said.
Though the ACLU supports the Email Privacy Act, it opposes the Kelsey Smith Act. In testimony before a House committee, the organization has argued the bill increases the potential for law enforcement abuse.
The bill would require cellphone companies to provide police with phone location information during emergencies involving a high risk of death or serious injury. To speed the process, police wouldn’t need to have probable cause to access the information, but rather “reasonable belief” — a lower standard of evidence.
The ACLU also argues the legislation should include after-the-fact judicial review if judges don’t have to sign off on location data requests. “Doing so will deter abuse of the emergency requests process and provide a check on unjustified emergency demands,” the ACLU testified.
A Democratic effort to amend the bill in committee to require sworn statements from police failed. Rep. Frank Pallone, D-N.J., said Republicans had dropped consumer safeguards agreed to in an earlier version of the bill.