House EPCA Hearing Letter

House EPCA Hearing Letter

March 21, 2013

The Honorable Bob Goodlatte
House Committee on the Judiciary

The Honorable John Conyers, Jr.
Ranking Member
House Committee on the Judiciary

Re: House EPCA Hearings

Dear Chairman Goodlatte and Ranking Member Conyers:

On behalf of the 26,000 members of the Federal Law Enforcement Officers Association (FLEOA), we are writing to express our collective expertise regarding the Electronic Crimes Privacy Act (EPCA) and any proposed changes to this important tool in the law enforcement arsenal.

Last year, we wrote to both the Chairman and Ranking Member of the Senate Judiciary Committee about our disappointment with both the content of a proposed amendment to EPCA, and the exclusion of federal law enforcement stakeholder input.

A letter was also submitted to that same Committee by a group of state and local law enforcement organizations (Law Enforcement Perspectives on ECPA Reform – September 18th, 2012), which FLEOA endorses and whose views the House Judiciary Committee should also consider.

From all appearances, it seems that current efforts to reform EPCA represent only the interests of the electronic communications industry and privacy advocate groups.

In its letter to the Senate Judiciary Committee, FLEOA stated its opposition to the elimination of the 180-Day Rule. We also opposed the implementation of a three-day notification requirement of suspects who are under investigation. Furthermore, it remains unclear what impact the current proposed Senate EPCA changes would have on law enforcement's use of pen registers, subpoenas and court orders.

Our membership is also concerned with the possible impact of EPCA changes on National Security letters issued under section 2709.

The questions we asked were: Will the current Senate proposed legislation be interpreted as elevating the requirement to the warrant level? We all know that terrorists won't take pause to accommodate our efforts to navigate through added bureaucracy.

We view many of the proposed EPCA reforms as over-reaching, and it raises questions as to how it would impact law enforcement's access to other forms of online information, i.e., information provided to third parties such as accountants or online retailers. Since the original Senate EPCA amendment did not distinguish between public and private providers, will a grand jury subpoena no longer be a valid legal instrument to obtain an employee's work emails from a corporation?

It is clear that the position of privacy advocates and electronic communications industry lobbyists has resonated with the Congress. FLEOA also questions whether anyone queried the federal Inspector General community and the Office of Professional Responsibility to determine if there was a pattern of federal law enforcement abuses of EPCA related statues.

Some experts have said cell phone, texting and email usage has risen over 400 percent within the last decade. As a matter of math, it's not a far guess why electronic communications corporations and privacy advocacy groups have lobbied together - they appear to want to reduce the amount of requests law enforcement officers make to access critical electronic information.

The realities are that this is the way people, including criminals, communicate. For criminals, this has become a choice venue to commit crimes. Since the Genie of electronic communications has been unleashed, its benefits apply to law abiding citizens and criminals and terrorists who can easily hide their activities in the "cyber world." In many cases, throwing up more barriers to law enforcement's access of this information is like barring the doors to the hospital emergency room after a catastrophe.

Due to the mission of federal law enforcement officers to: defeat terrorists; stop money launders; investigate international financial crimes; and, thwart drug and weapon traffickers, investigating these crimes entails a varied use of EPCA provisions.

Before we throw the horse out of the barn, shouldn't the law enforcement perspective factor into a substantive debate and/or review of the need for any ECPA reform?

Given the gravity of this matter for all interested parties, we recommend that the House conduct a comprehensive review of ECPA to ensure that its applications and use are consistent with the Constitution and law enforcement's need to access information to best protect the American people.

We respectfully request that this process include the views of FLEOA, the largest federal law enforcement stakeholder association.

We respectfully request this letter be included in the Committee record and be distributed to the full Committee.

Thank you for considering the perspective of federal law enforcement officers nationwide.


Jon Adler
National President