Email Privacy Act Momentum Will Lead to Markup, Passage Next Year, Supporters Say
Encouraged by strong backing for the Email Privacy Act among House Judiciary Committee members during a Tuesday hearing (see 1512010054), bill supporters -- congressional staffers, technology industry representatives and privacy advocates -- said they believe HR-699, which updates the Electronic Communications Privacy Act (ECPA), has the momentum to get to markup and then a floor vote. The only question was when that would happen. Many said they expected some action during the first half of 2016. A House Democratic aide involved in the process said he expected a markup no earlier than spring due to other committee priorities.
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Center for Democracy and Technology Vice President-Policy Chris Calabrese, a witness at the hearing, said Thursday that "the key to whether the bill moves" is Chairman Bob Goodlatte, R-Va. "We have now cleared all the procedural hurdles. We’ve had a hearing. We’ve had a great deal of deliberation on the bill over several congresses and it has tremendous support on the committee," he said. "I just don’t think it can be ignored without some explanation from the chairman.”
Calabrese also said he didn't hear of any significant issues in that hearing, despite some law enforcement and civilian government agencies such as the SEC saying certain provisions within HR-699, which is sponsored by Reps. Kevin Yoder, R-Kan., and Jared Polis, D-Colo., would hamper their investigations. But Calabrese said such "issues around the edges" can be resolved during a markup. The International Association of Chiefs of Police, which was one of several law enforcement organizations that sent concerns this summer to Yoder about the bill, didn't comment.
Chances are good it will pass, the Democratic aide said Wednesday, though the bill may not get a markup until spring. He said the only people trying to stop the bill from moving forward are federal civilian agencies such as the SEC. "Other than that, the bill is overwhelmingly supported in the technology sector, among civil liberties groups on both the right and left," he said. "It's got 304 co-sponsors. We really think we have a lot of momentum."
A Republican House aide also involved in the process said the hearing was "a huge step in the right direction." He said the bill has "near-unanimous support" on the committee and "obviously would pass with a veto-proof majority in the House," but didn't predict when a markup would be scheduled. He also said that any law enforcement issues would be resolved during a markup. He doubted many lawmakers would look favorably on requests from the SEC and other agencies for "carve outs" or exemptions to certain bill provisions.
Another factor that may be in the bill's favor is House Speaker Paul Ryan, R-Wis., the Republican aide said. Since becoming speaker Oct. 29, Ryan has put "an emphasis on regular order and transparency," making Congress work more efficiently, the aide said: "That’s definitely an encouraging sign and maybe that’s got to do with the movement [of the bill] here." Democratic and Republican aides said they thought passage of the House bill would also put pressure on the Senate to act on its version, called the ECPA Amendments Act (S-356), sponsored by Sens. Mike Lee, R-Utah, and Pat Leahy, D-Vt. Calabrese said the Senate presumably has the votes to move it out of the Senate Judiciary Committee. While the S-356 had a hearing in September, a committee spokeswoman said in an email that no movement on the bill is expected.
Jamie Boone, Consumer Technology Association government affairs director, said CTA is "encouraged" by the House hearing and that Goodlatte showed a willingness to move forward on HR-699. "He had a couple of reservations that he would like to try and work out," she said. "I think the chances are good. It’s just a matter of process and whether they want to move this as a stand-alone or package together a larger ECPA reform package." Boone said a markup could occur early next year. "This is a pretty limited specific bill and solution. It’s a narrowly drafted and tailored bill that I think has a lot of potential to move forward," she said. Several other groups, including the Information Technology Industry Council and TechNet, and companies like Google also strongly supported the bill. Boone said her group also supports the Senate version.
Electronic Frontier Foundation staff attorney Sophia Cope said Wednesday EFF is "hopeful" HR-699 will be approved, but unclear on what the timeline would be. "The bills have a lot of support in Congress, industry, and within the privacy community," she emailed. "But the SEC and other civil agencies are really pushing for authority they don't have today. They're working really hard to convince the committees to amend the bills."