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The Electronic Communications Privacy Act: Promoting Security and Protecting Privacy in the Digital Age Hearing Committee On S. HRG. 111–1002 THE ELECTRONIC COMMUNICATIONS PRIVACY ACT: PROMOTING SECURITY AND PROTECTING PRIVACY IN THE DIGITAL AGE HEARING BEFORE THE COMMITTEE ON THE JUDICIARY UNITED STATES SENATE ONE HUNDRED ELEVENTH CONGRESS SECOND SESSION SEPTEMBER 22, 2010 Serial No. J–111–109 Printed for the use of the Committee on the Judiciary ( U.S. GOVERNMENT PRINTING OFFICE 66–875 PDF WASHINGTON : 2011 For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800 Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001 VerDate Nov 24 2008 11:00 Jul 07, 2011 Jkt 066875 PO 00000 Frm 00001 Fmt 5011 Sfmt 5011 S:\GPO\HEARINGS\66875.TXT SJUD1 PsN: CMORC COMMITTEE ON THE JUDICIARY PATRICK J. LEAHY, Vermont, Chairman HERB KOHL, Wisconsin JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California ORRIN G. HATCH, Utah RUSSELL D. FEINGOLD, Wisconsin CHARLES E. GRASSLEY, Iowa ARLEN SPECTER, Pennsylvania JON KYL, Arizona CHARLES E. SCHUMER, New York LINDSEY GRAHAM, South Carolina RICHARD J. DURBIN, Illinois JOHN CORNYN, Texas BENJAMIN L. CARDIN, Maryland TOM COBURN, Oklahoma SHELDON WHITEHOUSE, Rhode Island AMY KLOBUCHAR, Minnesota EDWARD E. KAUFMAN, Delaware AL FRANKEN, Minnesota BRUCE A. COHEN, Chief Counsel and Staff Director MATTHEW S. MINER, Republican Chief Counsel (II) VerDate Nov 24 2008 11:00 Jul 07, 2011 Jkt 066875 PO 00000 Frm 00002 Fmt 5904 Sfmt 5904 S:\GPO\HEARINGS\66875.TXT SJUD1 PsN: CMORC C O N T E N T S STATEMENTS OF COMMITTEE MEMBERS Page Cardin, Hon. Benjamin L., a U.S. Senator from the State of Maryland ............. 2 Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin, pre- pared statement ................................................................................................... 151 Franken, Hon. Al, a U.S. Senator from the State of Minnesota .......................... 3 Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 1 prepared statement .......................................................................................... 185 WITNESSES Baker, James A., Esq., Associate Deputy Attorney General, U.S. Department of Justice, Washington, DC ................................................................................. 6 Dempsey, James X., Esq., Vice President for Public Policy, Center for Democ- racy and Technology, San Francisco, California ................................................ 15 Jaffer, Jamil N., Esq., Attorney, Washington, DC ................................................ 19 Kerry, Cameron F., Esq., General Counsel, U.S. Department of Commerce ...... 3 Smith, Brad, Esq., General Counsel and Senior Vice President, Legal and Corporate Affairs, Microsoft Corporation, Redmond, Washington ................... 17 QUESTIONS AND ANSWERS Responses of James A. Baker to questions submitted by Senator Leahy, Specter and Feingold ........................................................................................... 33 SUBMISSIONS FOR THE RECORD American Civil Liberties Union (ACLU), Laura W. Murphy, Director, Wash- ington Legislative Office, Christopher Calabrese, Legislative Counsel, Washington Legislative Office, and Nicole A. Ozer, seq., Technology and Civil Liberties Policy Director, Northern California, joint statement ............. 47 Baker, James A., Esq., Associate Deputy Attorney General, U.S. Department of Justice, Washington, DC, statement .............................................................. 57 Blaze, Matt, Professor, University of Pennsylvania, Philadelphia, Pennsyl- vania, statement ................................................................................................... 64 Burr, J. Beckwith, Partner, Wilmer Cutler Pickering Hale and Dorr, LLP, Washington, DC, statement ................................................................................ 78 Competitive Enterprise Institute, Ryan Radia, Associate Director of Tech- nology Studies; The Progress & Freedom Foundation, Berin Szoka, Senior Fellow and Director, Center for Internet Freedom; Citizens Against Govern- ment Waste, Thomas A. Schatz, President; Americans for Tax Reform, Kelly William Cobb, Executive Director, Digital Liberty Project; and Center for Financial Privacy and Human Rights, J. Bradley Jansen, Director, Washington, DC, joint statement ....................................................................... 101 Computer & Communications Industry Association (CCIA), Washington, DC, statement .............................................................................................................. 108 Constitution Project, Washington, DC, statement ................................................ 122 Dempsey, James X., Esq., Vice President for Public Policy, Center for Democ- racy and Technology, San Francisco, California, statement ............................. 125 Department of Commerce, Comments of Digital Due Process, June 14, 2010, statement .............................................................................................................. 141 Freeman, Frederick W., Student, George Mason University, statement ............ 153 Jaffer, Jamil N., Esq., Attorney, Washington, DC, statement ............................. 156 (III) VerDate Nov 24 2008 11:00 Jul 07, 2011 Jkt 066875 PO 00000 Frm 00003 Fmt 5904 Sfmt 5904 S:\GPO\HEARINGS\66875.TXT SJUD1 PsN: CMORC IV Page Kerry, Cameron F., Esq., General Counsel, U.S. Department of Commerce, Washington, DC, statement ................................................................................ 171 Schellhase, David, Executive Vice President and General Counsel, San Fran- cisco, California, statement ................................................................................. 187 Smith, Brad, Esq., General Counsel and Senior Vice President, Legal and Corporate Affairs, Microsoft Corporation, Redmond, Washington, statement 201 VerDate Nov 24 2008 11:00 Jul 07, 2011 Jkt 066875 PO 00000 Frm 00004 Fmt 5904 Sfmt 5904 S:\GPO\HEARINGS\66875.TXT SJUD1 PsN: CMORC THE ELECTRONIC COMMUNICATIONS PRI- VACY ACT: PROMOTING SECURITY AND PROTECTING PRIVACY IN THE DIGITAL AGE TUESDAY, SEPTEMBER 22, 2010 U.S. SENATE, COMMITTEE ON THE JUDICIARY, Washington, DC. The Committee met, pursuant to notice, at 10:10 a.m., in room SD–226, Dirksen Senate Office Building, Hon. Patrick J. Leahy, Chairman of the Committee, presiding. Present: Senators Leahy, Cardin, Whitehouse, Klobuchar, and Franken. OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE STATE OF VERMONT Chairman LEAHY. I apologize for the delay. In the back room, we were settling all the problems of the world with our distinguished witnesses, but I think that one of the things that we have learned very quickly in this area is that the Electronic Communications Privacy Act, or ECPA, is one of the Nation’s premier digital privacy laws. But it is only as important as our efforts to keep it up to date might be. It was 40 years ago that Chief Justice Earl Warren wrote that ‘‘the fantastic advances in the field of electronic communication constitute a greater danger to the privacy of the individual.’’ That was 40 years ago. Now, Chief Justice Warren could not have imag- ined—in fact, I do not know if anybody could have 40 years ago— what types of communications we would have today and the dif- ferences in it. But what he said, even with all the changes, is as relevant today as it was then. For many years, ECPA has provided vital tools to law enforcement to investigate crime and to keep us safe, while at the same time protecting individual privacy online. As the country continues to grapple with the urgent need to develop a comprehen- sive national cybersecurity strategy, determining how best to bring this privacy law into the Digital Age is going to be one of our big- gest challenges, especially here in Congress. When Congress enacted ECPA in 1986, we wanted to ensure that all Americans would enjoy the same privacy protections in their on- line communications as they did in the offline world, and at the same time allowing law enforcement to have access under legiti- mate ways for information needed to combat crime. We put to- gether—and I remember very well the long negotiations we had on (1) VerDate Nov 24 2008 11:00 Jul 07, 2011 Jkt 066875 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\66875.TXT SJUD1 PsN: CMORC 2 that—a careful, bipartisan law designed in part to protect elec- tronic communications from real-time monitoring or interception by the Government, as e-mails were being delivered and from searches when these communications were then stored electronically. But the many advances in communication technologies have really out- paced the privacy protections that Congress put in place. ECPA today is a law that is often hampered by conflicting pri- vacy standards that create uncertainty and confusion for law en- forcement, for the business community, and for American con- sumers. For example, the content of a single e-mail could be subject to as many as four different levels of privacy protections under ECPA, depending upon where it is stored and when it is sent. Now, no one would quibble with the notion that ECPA is outdated, but the ques- tion of how best to update this law does not have a simple answer. And I believe there are a few core principles that should guide our work. First, privacy, public safety, and security are not mutually exclu- sive goals. Reform can, and should, carefully balance and accom- plish each. Second, reforms
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