House Committee Delays Adoption of Electronic Communications Privacy Act

(September 22, 2000) The House Judiciary Committee began its mark up of HR 5108, the Electronic Communications Privacy Act of 2000, on Thursday, September 21, but delayed further consideration until Tuesday, September 26.

HR 5018 was originally introduced by Rep. Charles Canady (R-FL) just before the August recess to extend certain legal protections afforded to wire communications to electronic communications and e-mail, and to provide for annual reports to the Congress on the subject from the subject from the Admistrative Office of U.S. Courts. However, the bill has already been expanded with several amendments. Moreover, when the House Judiciary Committee adjourned late on Thursday, September 22, a least six amendments were still pending.

Chairman Henry Hyde (R-IL) announced that HR 5018 will be the final bill to be marked up in this, the Committee's final final mark up session of the 106th Congress. The target adjournment date for both the House of Representatives and the Senate is October 6.

The Congress has a hectic schedule of appropriations bills, and other matters, in the next two weeks. It is highly unlikely that HR 5018 will become law in this Congress. Nevertheless, the Congress is almost certain to pick up where it left off when the 107th Congress meets in January of 2000.

Rep. Charles Canady (R-FL)

The original bill, HR 5018 IH, was significantly amended by the House Constitution Subcommittee on September 14. It is likely to be revised with more bill transforming amendments by the full Judiciary Committee.

The bill as introduced would amend 18 U.S.C. § 2515. This is a section of Chapter 119 of the criminal code. (This chapter pertains to wire and electronic communications interception and interception of oral communications.) § 2515 currently prohibits the use of intercepted wire communications that are prohibited under Chapter 119, as evidence in court. HR 5018 IH would expand this statutory exclusionary rule by adding the word "electronic", and further, by covering any "stored electronic communication" that has been disclosed. "Stored electronic communication" is legalese for email.

HR 5018 IH would also require judges to make certain reports to the Administrative Office (AO) of the United States Courts regarding "disclosure of stored electronic communications", and further require the AO to make annual reports to the Congress.

HR 5018 would also provide that pen register and trap and trace orders shall not be issued for e-mail addresses, "unless the court finds that specific and articulable facts reasonably indicate that a crime has been, is being, or will be committed, and information likely to be obtained by such installation and use is relevant to an investigation of that crime ..."

	Rep. Bob Barr (R-GA)

On September 14 Rep. Canady offered an amendment in the nature of a substitute that was adopted. However, it was first amended by an amendment offered by Rep. Bob Barr that prohibits the government from using cell phones as tracking devices without probable cause.

HR 5018, as reported by the Constitution Subcommittee, would be further amended by a major amendment offered by Rep. Canady at the full committee mark up on September 20. This amendment was under consideration when the committee adjourned late in the day.

This amendment further refines the exclusionary rule language. It also adds a long section regarding computer crimes, which gives the Department of Justice further prosecutorial powers.

The debate over HR 5018 by the Judiciary Committee on September 20 was neither rancorous nor partisan, as the political press often portrays the Committee. Two groups dominated the debate. Rep. Charles Canady (R-FL) and Rep. Mel Watt (D-NC) lead the side favoring HR 5018 with the Canady amendment. Rep. Bob Barr (R-GA), Rep. Jerrold Nadler (D-NY), and Rep. John Conyers (D-MI) opposed the Canady amendment. Reps. Canady and Watt argued that their approach would produce a bill that could pass, and be signed by the President. Reps. Barr, Nadler and Conyers argued for a bill that was more protective of privacy, and gave no, or fewer, new powers to prosecutors. Rep. Canady and Barr are both conservative Republicans, while Reps. Watt, Nadler, and Conyers are all liberal Democrats.

Rep. John Conyers (D-MI)

Rep. Watt defended the Canady amendment as producing "a bill that can survive the legislative process." One problem is the the Clinton administration may veto a bill that restricts the FBI's ability to eavesdrop on electronic communications.

Rep. Conyers stated that the Canady amendment weakens the protections of stored email, and is "a step backwards."

Rep. Barr complained that whenever the Congress writes a bill to protect privacy, it always gets "cluttered up with more law enforcement power." He added that the Committee should not try to amend the bill to please the administration, because "I don't think the Clinton administration is going to support the amendment in the nature of a substitute anyway."

Rep. Nadler said that "I am disappointed by the lack of sensitivity that the Department of Justice shows to civil liberties."

Rep. Canady is retiring from the House at the end of this Congress. When he was commended for his service by Rep. Barr, he received vigorous applause from members of both parties.

Two other amendments were considered. A minor amendment by Rep. Scott was approved. An amendment offered by Rep. Maxine Waters (D-CA) regarding sentencing in drug cases was ruled not germane. At least six amendments, in addition to the Canady amendment, were at the clerk's table at the time of adjournment.

During the mark up of HR 5018 the public section of the hearing room was almost empty. Representatives of the Center for Democracy and Technology, ACLU, and Clinton administration were present.