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tv   Key Capitol Hill Hearings  CSPAN  September 18, 2015 8:00am-10:01am EDT

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we'll always roll up our sleeves and get in the middle of it to address our needs and believe and of course, whatever information we gather we do hire the best and the most qualified and of course, we deal with people who don't produce at the level or quality we expect. so if nothing else in hold esponsie forntable and >> president grant to come i want to watch you for putting word out on 495. epa was trying to get a waiver for the navajo nation. to be able to respond and see real responsibility and accountability out of the epa. dr. wolk, a couple of questions. do you think colorado does a pretty good job in terms of monitoring? we have engineers in colorado, don't we? engineers in
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colorado? >> yes we do. with water quality engineers so we worked collaborative leave with the epa and others to provide those resources to have a colorado solution. >> part of your job is the people of the state of colorado that the water will be saved. does it concern you that as the chairman noted as a follow-up to my question in the there was zero engineers at the epa working on the mind that had the high potential to blow out? with the state of colorado handled it that way? >> it concerns me but that doesn't mean they were not
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involved in some capacity. >> you are in the government. it is your job to have oversight. wouldn't have been prudent for the epa to have that oversight to make good choices before we had a catastrophe? >> i don't know if they rely and other resources. >> he would handle the very differently? >> our department has its own engineers for that situation. >> while we were talking, if you have the unlimited budget going forward, would you be supportive of the goods and your chin legislation? >> at the pleasure of the governor and a number it is my position to say but our congressional delegates in the past in most of the western states have been active to promote and
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support legislation to redress these situations. >> councilman would you describe the challenges and the economics course they were facing as a southern ute try based off the impact of southern colorado specifically? >> the economic impact aside from any cost we have incurred is to be determined which you have this particular area of during go and silver and tin and the four corners of southwest colorado and to mexico, it is a tourist area. for us, with our casino as an example the same people visit also visit the four corners of the same people that visit us. when you have the world news
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to say here is a toxic waste site that scares people day council -- cancel trips and reservations in the economy goes down and that is something we have to look at what was our impact to do to those events? backhouse --. >> the queue to you and to all the members of both committees allowing us to be here for members that are not on this committee thank you for holding this critical hearing. thank you for taking time away from home. what happens to make people whole with real communication between each and every one of you.
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and how to prevent this from happening in the future. the one to associate myself with a common san question witt'sministrator mccarthy as well. the memo has come out for a region eight dated august -- september 15. and went to the communities. with every the soakers. and the neck state 24 hours later.
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and when region nine was notified at night even talking about the notification to the state of mexico. you have a problem that has to be corrected. i shared this with you with secretary mccarthy. i share this with mr. tipton as well. with this system that is put in place today for the amber over as well was the national weather system do you think that would be helpful to push out as much information? if not if there is realtime instant beautification would that have been beneficial? >> absolutely.
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>> rapid communication affairs that is something to make a difference. >> it would help. to make those decisions and to receive that quicker would have prepared better. >> i appreciate that. also thanks for herb -- from our brothers and sisters to alert many communities said new mexico through the leadership by being good neighbors that you were alerted your neighbors so thank you so very much. secretary flan is anything
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and is there anything you have concerns with to be corresponding to read the with the state of new mexico you would like to see done that maybe we can convey to give the rest of my time i have a little bit under a minute. if you could jump on that and submit things in writing and will visit with the president and navajo nation to fulfill requests and make sure we are able to convey that. >> and given extra time, you've got two minutes. >> congressman, based on a lot of the discussions and debate i've seen, the real question that needs to continue to be pressed, which i've heard a lot of today is what types of institutional reforms can be put
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in place as a result of the incident. things like early notification, ways to improve that is really focusing on how we can evaluate performance and move forward. there's a lot of pr and spin coming out to put a bow on this in move on that are asking difficult questions on his additional reforms. that is a concern i have about the structure of the quote, on both independent investigation of the department of interior. i don't truly believe that an independent investigation. but we difficult to investigate another member of my cabinet working under governor martinez. a truly independent investigation should occur so the great questions that bring about institutional improvement can be asked to make a make government work better and learn from this. >> thank you for the questions. number one, don't let this
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happen again. don't like yellow water come down into a river ever again. secondly, i'm thinner form modified, we need the u.s. attorney general's opinion saying that waiver is not final. we can submit claims or damages. we don't trust a word of mccarthy and we need a legal opinion from the u.s. attorney general so we can feel much better about telling our people they can continue to sit at form and also be compensated continuously until all this is resolved. also, the dilution is not the solution now despite epa's term of cleanup is. it is not ours. they need to remove soil that are contaminated from our land. diluted net by releasing the water from the dam is not the
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way to clean up the spill taken place on our land. thank you gave >> mr. chairman, i look forward to working with you to address these issues. we need to get to the bottom of this. i'm working on legislation with my counterpart that would ask and require for expeditious carry out of the claims process and the establishment of those offices in this community so that way there can be technical assistance to the individual also asking for support. thank you for the indulgence. to the witnesses committed in that for your testimony. >> we want you to seriously until you come back to the committee. >> yes, sir. >> thank you current chairman is sure. secretary flynn made the point that the water level rose and moved downstream when they return to the normal level. at last contaminated sediment.
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my question to the tribal leaders, mr. begaye and mr. olguin, does any of this impact any of the sacred places, places sacred to the navajo nation for the southern ute tribes? mr. begaye. >> thank you, congressman palmer. pollen from corn is sacred to us, is used for early morning prayers coming used in ceremonies extensively and died to core died to core and i'm sure in the corn maturing quicker, it is hurt the pollen germinating for maturing. people are concerned they will not have enough pollen for ceremonies or morning prayers to be used in that way. you have all of these plants that are medicine people used to grow along the river are no
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longer wanting to gather these are both plans used in ceremonies on the river. so yes i'm end is definitely damaged that part of the culture sacred to us. >> mr. dies. >> i would have to say when they look at the youth ancestors some of those mountains are homeland. it starts right there when the mining industry came out in that area. where we are located, the water is a sacred source of life for us. one of the rivers across as the reverend nation. along the river we don't make those public by any means. this is sacred in all aspects. there isn't any way you can put
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a price on the damage in that regard. let me ask you this and this question will go to the gentleman from colorado and new mexico as well. all-star with mr. begaye. considering this in terms of your culture and what is sacred to you, if the epa were to declare the superfund sites, but what the long-term ramifications be in that regard? >> for us, they need to clean up the mayans that are out there because if it is not in another blowout will occur as we were told we were standing alongside the person working the back o. when the blowout occurred, he was saying there is another mine on the other side that is ready to blowout, so we don't want that to occur again and again and again. if it does, it will really hurt
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our sacred areas, our sacred plan in people's lives will be disrupted continuously. >> mr. olguin. >> well, at this point it is hard for us to say, but cleaning up the river, cleaning up the water is of most importance. >> i will let dr. wolk answered next to it i've got a final point and then i'll be out of here. >> just on the notion that the decision to make it a superfund site, it's more complicated because the local community obviously has a very large voice and not as well as the state. we have successful examples of superfund sites that have been restorative and have a sustainability plan now going forward. it is certainly a viable option.
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>> mr. flynn -- secretary flynn. >> congressman, the superfund sites have a place in environmental cleanup. however, i don't think it's really designed to solve other problems. in fact, when you have a responsible party who is doing work ,-com,-com ma superfund adds level of bureaucracy that can load on environments of the cleanup projects. superfund is most when there isn't a responsible party who is there to do cleanup work. we have 14 interstate and it can be used effectively. there is a huge fuel spill that we are cleaning up where we avoided designating a superfund site in our largest metropolitan area and we've moved much faster. i don't think would be appropriate, but we have a responsible party and we been able to get more work done.
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>> the chairman indulge me for a final statement here. my sense to be beneficial to avoid a site because of what it's going to do in terms of people viewing your tourist site, property values and things of that nature. the most important thing is something secretary lynn touched on in a previous hearing and that is making sure whoever is doing at the cleanup is qualified. they had the engineering expertise, you just don't send anybody out with a backhoe to do this. thank you, mr. chairman. i yield the balance of my time. >> thank you. do you have some questions for these witnesses before i do mine? thank you, mr. chairman. i do. i appreciate your accommodation. thank you all for attending. i of course had an opportunity
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to ask director mccarthy some questions this morning and i would like to pose some of the same questions to you. i'm going to start with mr. mr. flynn. can you explain how the lack of communication affect your ability to respond? >> congresswoman, i started discussed the short-term issues, but the bigger problems occurred as we were working through the emergency where we were constantly having to fight to get information and data from epa and the more information we could receive, the quicker we could make decisions about when it would be appropriate to start withdrawing water from the river again. the lack of timeliness with respect to providing data, the bottom line is we need the information to help solve our
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response plan. some of these issues when its supply of water. some of the smaller system is limited, so they had a couple of days of reserves. in order to make decisions, we had to plan out seven, 10 days to mobilize people to put physical infrastructure in place to create an alternative supply, a backup resource. not having data the first couple of days put us in a position to take conservative faction in one case they pipe and connect with system because we weren't sure we were able to allow the system to withdraw from the river because of an absence of information. >> counselor olguin, excuse me if i was mispronounced her name. welcome to our committee. can you tell us how the disaster affect did the southern ute
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tribe. >> generally the way i can express it is we have to respond first and foremost that the disaster by having to implement our emergency management plan and start incurring costs to address needs for membership and that's the biggest thing. of course you never plan for disaster, but when you do the plan kicks in. >> president begaye, same question. how has it affected the navajo nation and you have any estimate how much it will cost to fix it to return to the pre-spill condition? >> it has really devastated our nation. 250 miles of river lies on our nation. a third of the population utilizes a, ranching, madison,
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farming. when you look into their faces and standalone alongside it and they tell you you still giving water debate now is gone, i know is gone, but they continue to give water because it's like children. watermelon play a couple cornstalk, all of that. they are very closely connected to their farm, to their crops in a spiritual way. it is difficult to place a price on that type of relationship with nature we've had. it will be asked and seven we cannot at this moment put a price on it. we are reluctant to do so in many ways culturally, but we will do that. our people are hurting and when
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you say untruths the upu pulling out, that's not been provided because of the spill caused by workers is extremely devastating. at this moment our nation is hurting. >> is any tribe received an initial compensation for direct out-of-pocket expense is incurred by either tried immediately after the incident? >> navajo nation has not received a single penny yet. >> we have not received any, but we are working on an agreement to the rehab nurse. >> so you are working on something in the nature of ongoing compensation? is the federal government demanding it be a complete settlement, cutting off future
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reimbursement or compensation for injury? has anyone approached you about those kinds of proposals? >> congresswoman, thank you. are leaders in one community contacted our office say there is a form passed out by epa workers and we don't know what it is. we don't know whether we should fill this out or not. the navajo nation attorney general reviewed it, let data it, determined this was the final sediment formed that if they fill it out and so i got on radio and now the homeland which explained what it was and never once stopped filling out the forms. we need an interim for now. we need the attorney general to give this illegal opinion. we will not take the word of
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administrator mccarthy said the compensation will continue. we don't believe that until we see it in writing clearly spelled out by the attorney general of the united states. >> my time is expired. mr. chairman thank you for the accommodation of my questions. >> you're welcome. >> thank you, chairman bishop. councilman and mr. president, thank you for being here. the navajo nation rightfully is concerned about contamination related to mining given the legacy. and how members have suffered through the uranium contamination issues and other issues.
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mr. president coming your points are well taken. the cultural resources sacred. the assurance that flow is nurturing and not her full is essential. reimbursement and the settlement of claims needs to be exercised. one of my colleagues in the questions said this incident now is causing distress with the federal government in terms of notification and consultation. i don't think it happened now. this is a pattern and one of the points i think and councilman trent ibis well, we need to codify how consultation happens with native nations so that there is a process and a check was not left to somebody's analysis. that is the law and what should be followed. thank you for bringing that.
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i wanted to ask.or wolk. describe if you can as quickly as you can over the past decade or so has the water quality been getting better or bad and getting worse if you look at that period of time or is that impossible? >> thank you, sir. over the past 10 years the water quality has been gradually deteriorating and that is using a revolting that the decreased amounts of fish and numbers as well as certain species as it relates to aquatic life. it hasn't deteriorated to the point of not being suitable or intake for drinking water or use of recreational purposes or irrigation purposes, but certainly will deteriorate.
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>> 428 on the priorities list and reclamation issues. and so whatever a waiting list is it's really hard to gauge because until those are gotten with the resources available, more and more can be piling i'm waiting for an opportunity to get on the priority list. i'm glad for all the witnesses today. i wish the representative of the national mining association would've been here so we can inquire what will the private sector should have going down in the future how they feel about distraction of public lands in the loyalty i passed to the distractions to work and how its effect and communities across the board.
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i mention that because the truth is, there was a ticking bomb and that was the abandoned mine that affect dead. people called the bomb squad, in this case unfortunately the bomb squad set it off when they were trying to defuse it. my colleagues on the other side of the aisle today gathered to attack the bomb squad. our side of the aisle urgently with everyone involved in the states, the native nations work together to defuse the other bombs we know are out there. that is what we are looking for in the future. before we make a bomb squad the bad guys, come to some conclusions as how we go forward dealing with the backlog and
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catalog a similar situations across the country and across the west. with that, thank you in a yield that. >> thank you. i have a series of statements that i ask unanimous consent to put in the record. let me be the last to ask a few questions to you. president begaye, is president obama reached out to your tribe or talk to you? >> president obama has been silent, seemingly he closed his door in the greatest time of need so we are yet to hear from the white house. >> i also have -- thank you. when you are prohibited from growing closer to the site, dollars when you couldn't go any
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further. >> this was abuzz over 10 on colorado land. >> thank you. that clarifies it. secretary flynn commend epa has asserted they supplied the information. has that been your experience? >> chairman, no. there's a lot of room for prevent by the epa on this effort and i have a good grasp or a series of graphs i would like to show you and submit for the record. this was actually developed by epa on august 7th on a friday before the plume had new mexico. this is based on information that epa had taken from colorado south of this bill and they quickly put the graph out the message that the public is like
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a pr gesture. my scientists were insulted by this graph for a variety of reasons. the first was they plotted it on a linear scale. it looks like ladd and cadmium are totally flatline and you can't really see, but the bottom line is two medals representing. the other provided dissolved metals when the epa's drinking water are based on total not dissolved concentration in the graph doesn't have anything about arsenic, which we knew was over 823 times the maximum contaminant lemon at the time of this bill. if you look at that graph in a second of a second series of graphs. i don't know if they're available in the record.
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this is what would be a logarithmic graph, which is a scientifically valid way to present the information. the final graph really illustrates a point. this is how you represent the concentration of lead using the same information presented in the first graph or issa [-left-bracket zero flat lighting along the line. the last crashes to the consultation from their data in the orange line shows you what the maximum contaminant levels are the safe water drinking that. that was not done by any scientists. palestine immediately after the plane had hit a stone data we repeatedly asked for. i don't think any sign that epa had a hand in this because it was so insulting to my staff that i can imagine scientists to be involved in this development. that was the first of a number of instances where i am gpa was
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forthcoming with information. >> of those are not part of the record, will make them part of the record. there are times they provide you data in a way that's helpful in times that epa would not provide you data or exclude you from the response process. >> yes, chairman bishop. friday, august 21st, now well over two weeks after the spill occurred, we have been fighting back and forth because like i said before the water quality will rebound, but the sediment sampling is that tells you what's been left over and that is critical. we fight with epa understaffed a staff level and asking for the plan for weeks and on the 21st comment epa claimed they couldn't provide it because they contained business confidential
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information and a number of other excuses. i was incredulous at that response. they had also claimed they were concerned about new mexico's open records law. we have a very broad public records act that does not contain the same degree of conclusions that the freedom of information act allows so they were concerned about the brat of our public records act and we would be disclosing more information than otherwise required. those are a couple of reasons that i'd be happy to supplement the record with documents. >> you guys are too transparent. >> is essentially one of the concerns raised. >> let me ask you about the department of the interior. what was their reaction? could there've been more helpful? >> on friday morning at
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5:00 a.m. i was in the area and i do speak to some lower -- local staff, two people there. we asked them to release more water from the navajo lake to help reserve two of the endangers beasties in the areas. the colorado pike minnow and the razorbacks. the staffers were great and they acted on their own. other than that contact reinitiated right away, the interior's involvement was nonexistent other than a press release they are now investigating. i don't understand what they're investigating because the press didn't provide a lot of information. >> is why we were hoping they would be part of the panel that chose not to answer this question as to whether they plan on doing something.
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has epa been more forward with the cost of new mexico? >> no. i think -- last week i was really taken aback when lower-level staffers and epa reached out -- i modestly referring to the organization chart. these are nonmanagement employees. epa may contact to a couple of my staffers as well as a couple staffers from the homeland security train together information about the cause related to this. we in the state of new mexico and colorado, utah, others considering legal action. as an attorney myself, it was surprising to me they would seek to gather the information.
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i would expect it would be done at a high level. i instructed my staff and the governor instructed the other staff the to medication is to be going through at the leadership level and we were going to communicate in that way. it seems kind of bad faith and as a lawyer that's not the tactic i would use in litigation to secretly or quietly try to reach out for info without contacting the management level employees. >> dr. wolk, let me ask you as well because the epa says -- mr. mr. grijalva summarize the problem that they could have done a better job of notification. did they actually notify colorado or were fortunate to have somebody who hurt her?
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>> thank you, sir. we were fortunate enough to have a member of our department of natural resources there at the site to activate or notification system in state through our spill line. we were able to follow up with notifications for downstream users. >> you really got serendipity. new mexico didn't know until the southern ute recognize that. who actually notify deal? >> we were notified by the state of new mexico and utah as well. so when epa talks about the notification process, it was nonexistent. they did notify squad. it had to be done by other people in that process. we do have one other member.
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i'm stretching to see if i can get one other person to ask questions. there is also an issue coming. the mesa to pontificate disaffected. we are going to end this very quickly. i appreciate the notification. i want to also emphasize the districts involved in this area and the people on the ground doing my work didn't have a great notification process. so as congressmen lujan is getting ready, i will give the last chance to ask questions. i've tried to emphasize how frustrated i am that the epa insisted on having their own panel that consumed three of the four and half hours of which we have been here. i don't actually allow that in my committee because it is
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important the administration or any administration since at the same table with those people over whom they make decisions and had your testimony which is riveting and far more informative, had your testimony been given at the same time we could've had the chance of going back to administrator mccarthy and get some of the root issues here. sometimes we stay the same words but we are not meeting the same words. that is extremely frustrating to me and why i tried to emphasize that so significantly. it's not just ms. mccarthy. if the entire administration that leaves they have to be separate and go first. i find that arrogant and disgusting. i apologize for your cooling your heels to lie because the testimony is given in the questions you've answered for fascinating would've been beneficial for not opening up
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the members at the beginning to have heard that the entire epa entourage to hear the responses because in many cases they are in sharp contrast with what epa is telling us has or has not taken place. that is my last rant for the day. ms. lujan, you're recognized before we go well. thank you, mr. chairman. thank you for providing me the last word if you will which is quite an honor. i get to start by thanking the panel and all of you been incredibly aware and involved doing everything we can to clean up and look at how we mitigate issues in the future but also the long-term impacts. a couple questions to our own secretary environment in secretary for land i'm delighted to have you here and i'm sure the committee heard you were
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involved from the beginning as soon as you receive notice. been instrumental in assessing the epa to address these issues and figure out what we do going forward. although the epa data is showing surface water contamination now back to pre-spell levels, we know the concentration of arsenic cap many of, lead and other heavy metals spilled to the bottom of the river and they can be a variety of fact as at any time. while i assure you what to the natural flow of rivers and seven at the mint and weather conditions is critical we prepare for the long-term environmental consequences and impact and continue to monitor, collect data and do research that we nowhere protect in the long term environmental and
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health in pack for new mexicans around in the other states surrounding ovulation. how secretaries, and you are working with a coulters. tell us more about that and how i can help you make sure you keep the coalition together and their important work. >> congresswoman, first of all, thank you for your interest and time on every issue we've ever worked on together. i really appreciate that. i think we do at the same way you and i have personally tackled some of these issues before such as the fuel spill cover in albuquerque and kirkland air force base kirkland air force base the way of tackle that problem by including local communities and local expertise available through public institutions and by including local stakeholder groups. the state of nomex go has
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developed a monitoring plan with multi-agencies and multi-groups. we have a number of outstanding ngos in the area. we have university of new mexico, national laboratories as well as state resources. we have expertise in our state as you are fully aware of. how to record made the effort and most importantly get it funded. >> your opinion secretary flynn is this last to its own and i understand the financial implications for the federal government are significant, but it was their responsibility if we don't push for the issue that there may not be assessments and representing as we both do a porous date the nation we can pick up a $200,000 or $300,000
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effort and i may not get the number right to correct or clarify for me. i needs to be in the plan about how they propose to monitor and assess the environmental health impact of this bill. >> congresswoman, their plan should be to support our plan. i don't think the fox should be guarding the henhouse. they created the situation. we would never allow a private entity we are regulating to do in own investigation of and accept those results. to build public confidence in the outturn of the plan there needs to be an independent entity. >> i'm running out of time and i totally agree with you. i want to make sure i think president begaye in your incredible work. i'm upset the epa took longer to notify the navajo nation and i appreciate the work of senators
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to look at notification legislation. perhaps the best thing is we will support you and many members of congress in a bipartisan effort to require the epa to have much better relationships and a government to government recognizes sovereignty of the navajo nation and you should expect from the government and state the one-to-one collaboration so you have your plan and effort and independent process and that should be respected and supported, sir. you're welcome. thank you, mr. chairman. >> i'm sure private citizens have the same thing takes place. >> i appreciate the long distance you've traveled. your written testimony is part of the record. i appreciate the detail in which he did that. there may be other questions members may have a. we will keep our official transcript -- what's it called,
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record of the committee? record open for 10 days in which if there are questions we may ask for responses within that time period. we thank you for your testimony. i promise to both committees will not let the issue go through the cracks. we will maintain it until we get definitive answers and changes before we go forward. with no other business and the thought of action and then the only only one here knowable object to it. the committee stands adjourned. s adjourned. [inaudiblecosa [inaudible conversations]
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♪ all business to for the honorable supreme court of the united state to go and get their attention. >> 759, petitioner versus arizona. >> number 18, roe versus wade. >> monrovia madison is the most famous case ever decided. >> it existed as an late people here on land where slavery wasn't legally recognized. >> been the brown decision into effect would take presidential orders and the troops and
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marshals and the courage of children. >> we wanted to pick cases that change the direction and imported the court society and also changed society. >> so she told them they would have to have a search and demanded to see the paper and see what it was, which they refuse to do so she grabbed it, looked at it and thereafter the police officer handcuffed her. >> i can imagine a better way to bring the constitution to live in telling the great supreme court cases.
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>> quite often in many of our most famous decisions are ones that the court to that were quite unpopular. >> if you had to pick one freedom that was the most essential to the functioning of a democracy, it has to be freedom of speech. >> let's go through a few cases that illustrate dramatically and visually what it means to live in a society of 310 million different people who stick together and are able to beat any rule of law.
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>> the senate judiciary committee held a hearing on how government agencies and companies are protecting americans data held by cloud computing providers. this is two hours and 10 minutes. >> today's hearing is intended to help inform the committee about the most recent views of a wide variety considering the
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need to reform the electronic communication privacy act or as we know around here, ecpa and very specific sine. the committee's last heard on the topic was four and half years ago. since then, numerous proposals have been a band by members of the committee. in 1986, congress enacted the event to protect the privacy of americans electronic communication and provide the government with the means to access communications and related records in certain circumstances. however, dramatic changes in use of communication technology have occurred since 1986. americans down to pen an e-mail, text message, social websites and countless other electronic communication methods on a daily basis. more than ever, these
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communications are retained in some form due to dramatic reduction in the cost of storing data in the cloud. these communications are enriching our lives. with my constituents in iowa i'm the most part american type knowledge accompanies to thank for the digital revolution. these companies are now a significant engine of growth for our economy by creating an increasingly global market global market for these communication technologies. of course technologies are used every day by those who intend to do our society great harm. terrorists, then a drug dealers, environmental criminals then you can go on and on. technologies created digital
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trade often essential to bringing offenders to justice. in light of these changes, there is a growing consensus that ecpa must be modernized to adapt the nuclear gave them whenever updates to the law we make of course must be consistent with people's protections under the fourth amendment. the privacy and technology communities have criticized ecpa for failing to provide sufficient faith or his or her individual stored electronic communications. indeed given the way americans use e-mail today, it would hardly make sense the privacy protections for an e-mail should turn on whether it's more than 180 days old or whether it's been open. at the same time, law enforcement officials have
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expressed concern with certain aspects of the current ecpa framework and how it impacts us and they are concerned reform after his to the statute they use every day do not unduly hamper the ability to investigate violations of law. the department of justice has addressed concerned about efforts to change trains have been and provide targets with information that could compromise ongoing investigations. but the department of civil law enforcement agencies have expressed the need to address an emerging gap in their authority if the target of an investigation fails to respond to lawful civil process for e-mail evidence in the target's possession. they contend this gap would allow offenses such as double
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rights violations, security fraud and consumer fraud to go punished. many law enforcement officials are frustrated with the current timeliness and quality responses by providers. unlike traditional search warrants, law enforcement agencies cannot control how quickly obtain evidence through ecpa warrants. they rely on providers to conduct searches for them. to these officials, any heightened that ecpa's legal standards should be accompanied by changes to the law that ensure they receive information they need timely. in addition, some officials have expressed concern the voluntary nature that ecpa emergency protection can result in unacceptable delay in important
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cases. for example, when a child is a duck it. closely related to concerns is the ongoing issue of encryption and going dark problem which the committee recently held a hearing on. this is another example for agents may meet the legal standards to obtain critical evidence but are not able to access quickly enough or at all. as i sat at our last hearing on ecpa, the reform we discussed in 2011, if we consider changes of legal standard under ecpa, we should also be working to ensure the same problems are granted for this the necessary addressing the issue. i sent a letter last week to get an update from the department about how the process is receiving. reforming the treatment of
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electronic communications is a complicated and potentially far-reaching endeavor at the intersection -- it's that i'm sorry. stored elect tronic communications therefore is complicated and potentially far-reaching endeavor to think that the intersection of privacy rights of the public, the investigative needs of law enforcement, society's interest in expanding commerce in the dictates of our important constitution. the key is to strike the right balance between these interests as ranking member of the way he declared at our last hearing on the topic 2011, quote, meaningful ecpa reform must carefully balance privacy
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rights, public safety and security, end of quote. i agree. i'm grateful for all the witnesses and i now recognize senator leahy. thank you, mr. chairman. i remember when the foreign communications act was passed with a final -- i was talking to the former fbi last month in vermont. we were in my capitol office about 10:00, 11:00 at night and try to bring law enforcement and everybody together when we passed it. keep in mind, those calls were on landline.that time. call waiting list novel, few had heard of e-mail.
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a weekday figured they would be new electronic communications and ecpa could provide that. but there are now many ways nobody could have anticipated communicating. the privacy rules concerning this are simply outdated. government agencies can retain the content of an e-mail without a warrant if it is more than 180 days old. ..
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>> he put that note this his desk, somebody's going to have to have a warrant to go and get it. i didn't put anything in there to justify the warrant -- [laughter] but if i sent him a text that's stored in the cloud, why should it be any different? why should somebody be able to just take it out? senator lee and i introduced the ecpa amendment act to bring privacy protection to the digital world to those in the physical world. my bill has 22 other cosponsors, nine of them on this committee. in the house, even more. 300 cosponsors, both parties support the bill. an extraordinary coalition of industry and civil society
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supports this bill. americans for tax reform, the center for democracy and technology, heritage action, the aclu. usually representatives of those people have to have an arbitrator get on an elevator with them if they're all together, but they all agree with this. the bill's been reported from the judiciary committee by a voice vote in each of the last two congresses. i think, to use a technical term, passing this is a no-brainer. five years ago the u.s. court of appeals for the sixth circuit found the contents of e-mail fully protected by the fourth amendment regardless of its age, and that's effectively become the rule nationwide. major service providers no longer turn over the contents of e-mails without a legitimate warrant exception. the ecpa amendments act simply, as senator lee knows, we simply
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codify current practice. some have raised concerns the bill would hamper civil regulatory agencies such as the sec. we want these agencies to be effective, but there's nothing in our constitution that says only certain agencies have to follow the constitution, others don't have to. the sec has not been able to obtain e-mails without a warrant because of the 2010 federal court ruling, and our bill doesn't change that. so i'm disappointed the commerce department was not asked to join the administration panel given its important perspective. but i thank the chairman for having this. a number of senate members and house members that have joined on this tells us this is an important issue. thank you and happy birthday a day early. >> thank you. before i introduce the panel, i
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would want to put some letters that we received outlining concerns of the current ecpa reform proposals from law enforcement agencies, so five i will name, the national association of assistant u.s. attorneys, federal law enforcement officers association, the major county sheriffs association, the national district attorneys association, the iowa county attorneys association. so i would ask, without objection, that these and additional letters be entered into the record. our first witness is principal deputy assistant attorney general elana tiran squeal. she also serves as head of the department of justice office of legal counsel. prior to joining justice, she worked in the office of white house counsel and served as assistant u.s. attorney, d.c.
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before that she was a policy counsel for the national partnership for women and families. she has an undergraduate degree from brown and a law degree from the university of michigan. our second witness, andrew ceresney. he currently serves as director of the division of enforcement security and exchange commission. before joining sec, he was a partner at -- [inaudible] where his practice included white collar criminal and sec investigations. prior to that he served as assistant u.s. attorney, southern district new york. he received his undergraduate degree at columbia and his law degree at yale. third witness, daniel salsburg, is chief counsel in the office of technology research and investigation, bureau of consumer protection, at the ftc.
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previously, he served as assistant director bureau of consumer protection and before that senior trial attorney for commodity -- cftc, division of enforcement. mr. salsburg received his undergraduate law degree university of pennsylvania, and i want to thank all three of you for testifying. we'll do it in the order you did, so proceed, elana. >> thank you. chairman grassley, ranking member leahy and members of the committee, thank you for the opportunity to testify on behalf of the department of justice regarding the electronic communications privacy act or ecpa. we appreciate the opportunity to engage with the committee on this topic which is of particular importance to the department. i look forward to discussing with the committee how the department uses ecpa and how the statute might be updated and improved. ecpa has always sought to insure that the government can perform its crucial public safety and civil and criminal enforcement missions while safeguarding individual privacy. it is important that ecpa reform
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efforts remain focused on maintaining both goals. electronic communications play a vital role in government investigations. indeed, as technology has advanced and as electronic communications and electronic data storage have augmented traditional means of communicating and storing information, appropriate governmental access to data has become even more important to upholding our law enforcement and national security responsibilities. ecpa is critical to tracking down criminals and investigations into murder, kidnapping, organized crime, child exploitation, identity theft, terrorism and more. but criminal investigations are are only a subset of the circumstances this which ecpa applies -- in which ecpa applies. the statute also applies when the government acts as a civil regulator or even as an ordinary civil litigant. ecpa reform efforts should account for the breadth of the statute's applications. we agree that not withstanding several updates to ecpa since
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its enactment in 1986, the statute draws some lines that do not account for the development of technology and the ways in which we use electronic and stored communications today. for example, there's no principle basis to treat e-mail less than 180 days old differently than e-mails more than 180 days old. similarly, there is no reason for the statute to give lesser protection to e-mails opened than to e-mails that remain unopened. how to account for changes in technology while providing for public safety and law enforcement imperatives remains the central challenge of ecpa reform efforts. personal privacy is critically important to everyone. all of us use e-mail and other technologies to share personal information, and we want it to be appropriately protected. and many discussions about enhancing privacy focus on a proposal that would require law enforcement to obtain a criminal search warrant based on probable cause to compel disclosure of stored e-mail and similar stored
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content from a public service provider. this is a sensible approach provided that congress consider crafting limited alternatives for certain investigative functions. for example, civil regulators and litigators typically investigate conduct that, while unlawful, is not a crime. but criminal search warrants are only available if an investigator can show probable cause that a crime has occurred. lacking warrant authority, civil investigators enforcing civil rights, environmental, antitrust and a host of other laws will be left unable to obtain stored contents of communications from providers. as information is increasingly stored electronically and as wrong wrongdoers take new steps to shield that information from civil investigators, the amount of critical investigates that is off limits to government regulators and litigators will only increase. efforts to update ecpa can incorporate strong mechanisms that protect individual privacy
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and insure appropriate judicial oversight to government access to individual communications. any proposed changes to ecpa should address the ability of civil litigators and regulators to ask a court to compel disclosure of information from providers. the department also has several more technical, yet important concerns that we believe merit consideration. and although discussions about updating ecpa have often focused on the standard for governmental access to stored content information, we also believe there are other parts of the statute as noted in my sfr that would benefit from further examination. i would also like to speak briefly about government access to data stored abroad which some proposals to amend ecpa would significantly alter. the administration is studying these proposals, but the department has significant concerns about aspects of these proposals. the department of justice appreciates the opportunity to discuss all of these issues with the committee, and i look forward to your questions today.
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>> thank you. andrew? >> thank you, chairman grassley. ranking member leahy and members of the committee, good morning and thank you for inviting me to testify today on behalf of the sec concerning the electronic communications privacy amendments act pending before your committee. i share the bill's goal of updating ecpa's evidence collection procedures and privacy protections to account for the digital age, but the bill in its current form poses significant risks to the american public by impeding the ability of the sec and other civil law enforcement agencies to investigate and uncover financial fraud and other unlawful conduct. i firmly believe there are ways to update ecpa that offer stronger privacy protections and observe constitutional boundaries without frustrating the legitimate ends of civil law enforcement. the sec's tripartheid mission is to protect investors, maintain fair, orderly and efficient markets and facilitate capital formation. our division of enforcement furthers this mission by investigating potential
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violation to the federal securities laws, recommending that the commission bring action against alleged fraudsters and other wrongdoers. a strong enforcement program is critical to the sec's efforts to protect investors from fraudulent schemes and promotes investor trust and confidence in the integrity of our securities market. electronic communications often provide critical evidence in sec investigations, as e-mail and other message content can establish timing, knowledge or relationships or awareness that certain statements to investors were false or misleading. when we conduct investigations, we generally seek e-mails or other electronic communications through key actors through an administrative subpoena. in some cases, the person will respond to those requests, but in others they may have tendered only some e-mails, asserted damaged hardware or refused to respond. unsurprisingly, individuals who violate the law are often reluctant to produce evidence of their own misconduct. in still other cases, e-mail
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account holders cannot be subpoenaed because they are beyond our jurisdiction. it is at this point in an investigation that we may need to seek information from an internet service provider or isp. the bill at issue would require government entities to procure a criminal warrant when they seek the content of e-mails or other electronic communications from isps. because the sec and other civil law enforcement agencies cannot obtain criminal warrants, we would effectively not be able to gather electronic evidence directly from an isp even in instances where a subscriber deleted his e-mails, asserted his hardware was lost or damaged or fled to another jurisdiction. depriving the sec of authority to obtain e-mail content would also incentivize recipients to be less forthcoming in responding to investigatory requests, because an individual who knows that the sec lacks the authority to obtain these e-mails may be emboldened to destroy or not produce them. these are not abstract concerns for the sec or the investors we
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protect. among the type of scams we investigate are ponzi and pump and dump market manipulation schemes as well as insider trading violations. in these types of frauds, illegal acts are particularly likely to be communicated via personal e-mail accounts, and parties are more likely to be noncooperative in their document productions. technology has evolved since ecpa's passage, and there is no question the law should evolve even when significant law enforcement interests are also implicated. but there are various ways to strike an appropriate balance between these interests as the committee considers advancing this important legislation. as part of that balance, any ecpa reform and should afford a party whose information is sought from an isp in a civil investigation notice and an opportunity to participate in judicial proceedings before the isp is compelled to produce the information. indeed, when seeking e-mail content from isps in the past, the division provided notice to
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e-mail account holders in keeping with longstanding and recently reaffirmed supreme court precedent. if the legislation was so structured and an individual had the ability to raise with a court any privilege, relevancy or other concern before the communications are provided by an isp while civil law enforcement maintain a limited avenue to access existing communications in appropriate circumstances from isps. such a judicial proceeding would offer greater protection to subscribers than a criminal warrant in which subscribers receive no opportunity to be heard before communications are provided. thank you again for the opportunity to be here today. we look forward to working with the committee on ways to modernize ecpa without putting investors at risk and impairing the sec from ensourcing the federal -- enforcing the federal securities laws. happy to answer any questions you have. >> thank you, andrew. daniel? >> chairman grassley, ranking member leahy, members of the committee, i'm the chief counsel in the office of technology, research and investigation in the sec's -- ftc's bureau of
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protection. my oral statements and responses to questions are my own, and they don't necessarily reflect the views of the commission or any commissioner. having said that, i very much appreciate the opportunity to present the ftc's testimony and explain how proposals to amend ecpa could impact the commission's civil law enforcement mission. the ftc supports the objectives of ecpa reform and understands the need to update ecpa to account for technological advances and to protect consumers' privacy. in bringing civil law enforcement actions to protect consumers, we rely heavily on our ability to conduct thorough investigations of companies' business practices. as a civil law enforcement agency, the ftc is concerned that recent legislative proposals to update ecpa could impede our ability to obtain certain information from ecpa service providers in future cases. under recent legislative proposals, to obtain content
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from an ecpa service provider, the government would need to obtain a criminal warrant which is not available to the ftc. the proposals would require a warrant for all forms of content, even those in which a target has no reasonable expectation of privacy. we are concerned that requiring a criminal warrant in three situations could impede the commission's future effectiveness. the first of these situations concerns previously public commercial content that advertises or promotes a product or service. we're talking about things like no longer running advertisements, old versions of web sites, previously-sent spam and fleeting ads that may appear on a mobile device. this class of content is critical to many ftc investigations. before determining whether a target has made a false representation, we need to find the advertising or promotional material that contains the representation. in many instances, especially fraud cases, the scam artists change web sites and electronic marketing materials frequently. when commission staff investigates complaints about a
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web site, the web site currently viewable to the public may be different from the one that the consumer complained about. current ecpa allows us to compel a provider to produce marketing materials in some circumstances. we have not used this tool often. most of the time our investigators are able to track down the target's old marketing materials without needing to seek the materials from the provider. but the increasingly fleeting nature of advertisements, on a mobile device may appear for a few seconds, for instance, makes it quite likely we will need to compel old advertising and promotional materials from a provider more often. an exception from the criminal warrant requirement in proposed legislation for a previously public commercial content that advertises or promotes a product or service would enable the commission to obtain such commercial don't. at the same time -- content. at the same time, such an exception would have no impact on privacy rights because the materials would be purely commercial and have been affirmatively published by the target.
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as a result, the target would not have a reasonable expectation of privacy with respect to government access. the second situation which should be exempted from the criminal warrant requirement contained in recent ecpa reform proposals is content with the consent of the customer. as cloud computing becomes more wide spread, it will be increasingly important for a civil law enforcement agency to be able to compel an ecpa provider to expose content with the customer's consent. for example, a defendant may want to authorize the ftc to obtain documents if the records are voluminous or a consumer victim who deleted a message from a scam may want the ftc to obtain the message from the consumer's e-mail service provider. under current legislative proposals, however, each if the customer or subscriber has consented, we could not compel the cloud computing service to release the customer's content. when a customer consents to disclosure to the government, the customer has no reasonable expectation of privacy with respect to the government's
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access. third, a criminal warrant should not be needed when the ftc has compelled a target to produce content that is held by a cloud service provider and the target has refused or failed to comply with the ftc's demand. under these circumstances the fct should be able to -- ftc should be able to -- in conclusion, thank you for giving the commission an opportunity to describe the importance of electronic communications in our investigations and the ways in which proposed updates to ecpa -- while extremely important -- could hinder our law enforcement actions. the ftc looks forward to working with the committee to address the commission's concerns as legislation advances. >> thank you all more -- for your testimony, and we'll, i'll start and then senator leahy will be next with our questions. andrew, i'm going to start with you. chairwoman white has told us that the sec's ability to carry out enforcement responsibilities
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and conduct investigations has been significantly curtailed as a result of the war shack decision, but we've been told that the sec has not provided think examples of cases where access of electronic communications have been cut off due to that decision or would be impacted if the pending reform bills were enacted. can you provide any examples of the decisions that have been affected due to providers requiring a warrant when the government seeks electronic content in a civil investigation? >> yes, senator. obviously, i can't talk about the details of ongoing investigations, but i can say that there are a number of investigations in which, if we were exercising our authority under ecpa to obtain e-mails from isps, we would do that if furtherance of the investigation. for example, manipulation
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schemes, touting schemes. cases where if we had the authority we would certainly do that. i can't necessarily say it would produce e-mails that would dramatically further the investigation because right now i'm not able to know what it is that e-mails we would obtain through that kind of process. but i can definitively say that there are investigations that are ongoing, and there were investigations even prior to the warshach case that we were exercising authority that were significantly advanced by obtaining the e-mails. >> daniel, in your written testimony you suggest that a warrant-only requirement for obtaining electronic communications from an internet service provider, quote, could create some obstacles in further civil law enforcement cases. would you provide us examples of the type of cases and situations the ftc is concerned about that would create obstacles to future civil law enforcement cases? >> of course, senator.
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the types of cases we're talking about are those instances where the target or the defendant is trying to be evasive, is not responding to discovery or to our simple investigative demands. so we -- so that's one class of cases where we can't get the information directly from the target. the other class of cases are where the target is an outright fraud, like a fly-by-night scam, and we don't want to contact them directly. you know, if we contact them directly, they may flee, they may destroy evidence, destroy records and hide assets and keep us from being able to get money back for consumers. >> okay. there's a -- this would be to any or all of you. there's a perception from the privacy and tech community that what you're really asking for is a mechanism that lacks judicial oversight and sidesteps the
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target of a civil investigation without any notice or hearing. in fact, the written testimony provided to us from google states that you're probe posing to amend -- proposing to amend, quote, ecpa so that agencies can ultimately bypass the target of or even potential witnesses in civil investigations. end of quote. for any or all of you, is this a fair characteristic of what you're really proposing? >> senator, no, it is not. we are asking for a mechanism to allow courts to compel this information from providers where necessary and has been, as has been mentioned, this is information that we try to get from subscribers. where we can't get it from subscribers, we really do need it, and there are ways of protecting privacy out of insuring there's appropriate process as a safeguard for civil liberties and privacy.
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>> andrew? >> and i would just add that the mechanism that we're proposing, which is judicial proceeding where we would make some showing, whatever the showing that congress dictates would be, we would give notice to the subscriber and allow them to come in and offer objections. and from our perspective, that's more protection than a warrant proceeding where it's ex parte where the subscriber is not present. >> do you have anything the -- to add? >> i would agree that the judicial mechanism we're proposing would require two things. one is we'd have to go to the subscriber first, and only when we're unable to get the information from the subscriber could we then go and seek a court order. so it's two additional protections. we'd have are to first try to get it from the subscriber, and then there's be the judicial intervention. >> senator leahy. >> thank you, mr. chairman. first up, we are putting things in the record, and there's a great deal of consensus around the need to update ecpa. as consent to this, these
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letters be placed in the record -- >> yes. >> in support, thank you. they range from the chamber of commerce, former fbi director sessions, leadership conference on civil rights and many others. ms. tyrangiel, the fbi now uses warrants when it seeks the contents of e-mail communications in criminal investigations regardless of the age of the e-mails, is that correct? >> that is correct. >> so this bill that senator lee and i have would not change the fbi procedure in that regard. >> the bill would not change the procedure for criminal -- obtaining disclosure to a third party public provider of stored e-mail regardless of the age. >> thank you.
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should the privacy protection that's afforded to e-mail or text messages, should that change if they're older than six months or if they've been opened >> no. we don't think there's a principled reason to treat e-mail differently to -- we don't think there's a reason to treat e-mail differently depending on the age. >> mr. ceresney? >> no. i don't think we see any distinction there. >> salsburg. >> we agree with that. >> thank you. you know, five years, we talk about the united states v. warshach, i'll ask the same question of both mr. ceresney and mr. salsburg. since that ruling has the sec or the ftc obtained e-mail content through a subpoena issue today a third party provider -- issued to a third party provider? >> we have not, senator leahy,
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but we've done so this an excess of caution, and i think in deference to the informed cushions that have been going -- discussions that have been ongoing in congress. our view -- >> and in deference to a 5-year-old sixth circuit case which has not been overturned? >> no. our view is it does not deny the authority to obtain e-mail through an administrative subpoena. from our perspective, it involved a grand jury subpoena with no notice to the subscriber. we always have given notice to subscribers, and there's a long line of supreme court and other circuit cases that say that an administrative subpoena with notice to a subscriber complies with the fourth amendment. >> mr. salsburg? >> we have not sought e-mail content from a provider either before the warshach decision or since. >> okay. and you have sought a legislative solution or a change from congress in the past five years? >> no, we have not sought a solution until now.
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>> we have, obviously, offered over the last few years to have ongoing discussions, and we have had discussions -- >> have you made a proposal? >> we have. we've had discussions back and forth with -- >> could you give me a copy of the proposal you made? i don't seem to recall that. >> we've had discussions with staff about this issue over time. >> beginning five years ago? or just since -- >> well -- >> or just since senator lee and i looked like we might actually get something passed here? >> no. i can only speak to the two and a half years i've been director of enforcement. we've had discussions with the staff throughout that period of time. >> and you've, you sent up a concrete proposal? >> we've been discussing proposals -- >> discussing. you haven't set up a concrete proposal from your agency? >> well, our view is we want to be responsive to proposals that congress is providing, and so to the extent that staff for particular senators or
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congressmen have offered us what they're thinking about, we have offered them our thoughts on those proposals. >> are you seeking wiretap authority for your civil investigations? >> no, we're not. >> you do want to be able to read e-mails without a warrant. >> what we're proposing, senator, is a -- it's some sort of judicial proceeding that would find some sort of standard whether it be some sort of standard that would allow us then to obtain e-mails with notice to the subscriber as part of that proceeding so that the subscriber can raise any concerns that they have. >> what about listening to your target's phone calls? >> no. we're not proposing that. >> wouldn't that be more efficient, more effective? >> senator, we, we are not seeking wiretap authority. that is something that the criminal authorities have that we do not -- that is not something we're seeking.
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>> all right. .. >> my time is up. i will have a couple of questions for the record. thank you, mr. chairman. >> now senator hatch. let me read your it will be hatch, white house, they were
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here at the fall of the gavel and then perdue and then i assume go to the democratic senator franken, blake -- flight. that's the way -- senator hatch. >> ms. tyrangiel, am i pronouncing your name right? in your written testimony you stated that the department had concerns about legislative proposals aimed at safeguarding data stored abroad from improper government access. passion of the electronic human occasions privacy act is silent on the privacy standard u.s. officials must satisfy in order to access data stored abroad. and get the federal government has taken advantage of this statute was honest to upon its own standard. what is the legal basis for law enforcement agents to use ecpa wars to obtain data stored
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overseas? >> thank you for that question. there is long-standing legal framework that allows the government to serve compulsory legal process on united states companies to require them to bring back information that is stored abroad. and the concern with proposals that would change that framework is that it would take away an option that has long been unavailable under that framework and would replace it with international cooperation which is not, not an adequate solution because those agreements, that kind of cooperation doesn't exist everywhere, only about half the countries we have agreements with, and because even when we can use those agreements it takes a really long time and can delay investigations in times when we really need to be fast. >> i don't agree with you on that point and that's why, the
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leads act to establish a legal framework for law enforcement to access data stored abroad or overseas. michael strain help your efforts i would appreciate any suggestions you have that might make it a more workable bill or that might improve it or help you in your work. >> we look forward to working with you. >> thank you. in federal officials can obtain e-mails stored anywhere in the world super pac award, nothing stops current in other countries including china and russia from seeking e-mails of americans stored in the u.s. from providers subject to chinese and russian process. in fact, the lawyer who is litigating the microsoft case on behalf of the government acknowledged last week that the ability for reform government to require disclosures of a u.s. provider quote, should be of some concern, unquote.
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are you concerned about the far-reaching or reciprocal consequences of governments current position on the extraterritorial reach of the u.s. warrants? >> thank you for that question. this is a challenging issue, one that the department is actively considering. whatever this solution is we don't think that the solution should involve deciding conflicts of laws in a way that always works against the united states. historically courts have been able to weigh sovereignty interest in the interest of just victims, governmental interest and other factors and come to decisions on these issues. and the concern is any regime that would decide all matters of complex of law against the u.s. in every case. >> the mutual legal assistance treaty process facilitates formal agreement for sharing evidence between the united states and foreign countries. do you agree the process is a
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slow and cumbersome commute to? >> it certainly is slow and cumbersome for us to get information from other countries which is part of our concern. and the incoming process for mlat we agree there needs be processed make it work in progress both technological and otherwise, and i know the administration has requested resources in eight of the effort to improve things further. >> what can congress do to improve the process, and how does another country access data stored here in the united states? >> so again, these are really challenging issues, and we look for to working with you on them. one thing that is clear with the mlat process is that it is not a one size fits all kind of issue and people work differently all around the world. because it is a complicated and requires an approach that takes into account the way that it is operated now. we very much look forward to working with you to streamline
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the process. >> i look forward to working with you as well and i hope we can streamline this process and make it work not only for you but for businesses and others as well. thank you. >> senator whitehouse. >> thank you, chairman. in evaluating this question of civil access to content maintained by the service provider, i take a step back to the question of a criminal warrant come a criminal one is obtained by a government official going before a federal judge on an ex parte basis and getting the judges consent to get access to the material involved. that protection is there as understand because of the immense power that criminal
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enforcement gives to the government, power of incarceration. we have a federal death penalty. so from the very beginning for those constructed a process that limited arbitrate access to information on the part of the government when it had those terrible powers in its hands. ms. tyrangiel, those the government had any such powers with respect to the civil enforcement? >> it does not. civil enforcement lacks warrant authority. >> what you propose is that just like a wart, take it would have to go before a federal judge in order to get access to the data for civil enforcement purposes speak with the are a number of ways to do it but yes having a court be able to compel that evidence -- >> a court order would satisfy you? >> yes. >> in a number of circumstances your colleagues here on the panel have suggested that the subject might actually be, the
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subscriber might actually be notified first or that there might be notice to the subscriber so it would not be an ex parte proceeding to it would be a proceeding in which the individual's privacy interest wasn't bald headed the right to a. no, correct? >> that's correct. what happens, mr. salsburg, indicates you talked about were for a friday of reasons you don't want to reveal to the misbehaving party that this investigation is underway because they are likely to ask on or hide assets or destroy evidence or whatever? do you want some form of ex parte process like a board provides for the civil agency could say look, these are extraordinary circumstances, this is why we need access export a to this information to try to convince the judge of that -- ex parte? >> we are actually not asking for that authority. >> why did use that example of the importance of its?
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>> i suppose i completed the previously public content argument that we have we would still want to be able to get the content from a provider when we are talking about content where there's no result expectation of privacy. >> do any of you seek a proposal under which the government would be able to make a showing that an ex parte provision is necessary and go forward without notice to the subscriber? >> we are not, from our perspective. in fact, we typically will seek the e-mail from the subscriber first. if we're not able to obtain or don't believe we have obtained fully e-mails and we will go to the isp. >> one requirement -- >> what we're looking for, a limited go to obtain isp e-mails and opera cases wer where just t get them from -- >> through a court order? perhaps the same judgment had to go through to get the judge --
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get toward? spent the same judge. that's why said in my oral testimony and in my written statement that that is more protection than a board provides. >> sure it's. thank you very much, mr. chairman. i have one minute left before yield back my time. just to be clear, i think chairman grassley asked you this, but just in case it didn't come through as clear to you as it did to me. i would be interested in looking back at cases that have come to conclusion and where there is a public disclosure of the case where you can take a look at the case and say, this piece of evidence actually help make that case and we got a because we're able to access through the service provider to that information, not an ongoing case which i know is a very delicate circumstance for all of you, but closed cases looking back just
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so we can see whether this has made a difference in real life in the past. and with that i yield back my time, mr. chairman. thank you for holding this hearing. >> thank you, mr. chairman. thanks to all of you for being here. updating the electronic communications privacy act has been a priority of mine ever since i arrived in the senate. now that i've been here for about four and a half years i ever should more fully how difficult it can be to bring about a change of law that basically everyone agrees on. the overwhelming majority of the american people, and by that i mean 99.5% of anyone you ask, can agree that government onto a wart before goes after your e-mail, the content of your e-mail. number two, the same number of people would agree i think by about the same ratio that it ought not make any difference whether the e-mail is 179 days old fart 181 days old.
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whether or not the government has to get a warrant. this is a very simple principle that ought not be all that difficult to legislate. i've been honored to work on this legislation and the introduced senate bill 356, along with ranking member leahy, to bring our laws in conformity both with expectations that members of the public and what seems to be widely followed practice today. to start out with a boy to ask each of you a simple yes or no question. i want to ask you, does you agency believed that it should under normal circumstances, meaning in the absence of a generally applicable widely recognized exception to the work requirement, should it be required to get a warrant in order to get a content of people's e-mails, regardless of the age of e-mail?
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we will start with you, ms. tyrangiel. >> the department as indicated we did not oppose the warrant requirement for our criminal entities went to obtain information from a third party provider to the public, but note some concerns about that ruled where there is no wart authority available, like in our civil investigation. >> okay. >> if i understood your question quickly, th the edge is no. we believe it judicial procedure which allows the subscriber to object is an appropriate mechanism for obtaining e-mails. e-mails. >> do we agree with the sec's position? we do agree with the sec's position. >> i do think while there are few people in washington, d.c. who can understand what you're saying i think the long majority of the american people would be very disturbed to hear that that question can't be answered with
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a simple know, that the government should not be able to get at people's e-mails. the content of the e-mail without a warrant. now let me direct a question your way, ms. tyrangiel. i'm concerned that the department of justice, once it has obtained e-mails, it may use those e-mails for any investigation related to the initial reason for the acquisition or not. if you obtained e-mails on a mere subpoena in a civil investigation, what, if anything, would prevent those same e-mails that you obtained without a warrant in the context of a civil investigation with the subpoena, what would prevent the department from using that in a criminal prosecution? >> so certainly it would not be acceptable for things to be obtained on the civil side for the purposes of trying to use it on the criminal side. when things are in use they
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should be done according to the authorities that are available. however, when criminal evidence becomes apparent, that information can be shared and we are not proposing a way to get around the war t wart requiremet without any privacy protections. and there are ways of protecting privacy both by standard and by process. so what we're talking about on the civil side is a process protection. >> what kinds of safeguards would be doj proposed in order to prevent a civil agency carveout from being used to avoid the wart requirement? you can understand how that could easily be manipulated in order to avoid the warrant requirement. >> thank you for that question. i don't believe this instance is really any different than the other sorts of evidence that can be a pain in other ways. these are issues that exist as
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to all investigation, prosecutors and civil litigators and investigators are held to a standard to obey the rules and to hold individuals and follow the process the log requires. but i'm happy to get back to you if there are further questions, or to answer further questions. >> thank you. i see my time has expired, mr. chairman. >> since senator leahy asked me to be her as the ranking member, i have to be here. i will consider blumenthal will go next. i am forced to be here. next to you, i am required. >> go ahead. >> okay. >> thank you. what you think senator franken for his courtesy -- i want to thank senator franken for his courtesy. i am curious, mr. salsburg him e
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in your testimony you expressed concern about what would happen if the customer consent to having her service provider turnover enough but the service provider nonetheless refuses. can you give us some examples of how and when that might occur, if a customer is okay, but the service provider says in no. when and how would that occur? >> let me key to examples. the first is we are investigating a business and the business is readily willing to turn over information to us. but it maintains all in the cloud and the cost of that customer, that target, getting information from a cloud provide a significant. what is the richest offers us to go to the cloud service provider and get it and use our litigation support folks, they would rather have that happen. is that going to happen all the time that a target is willing to turn over its information en
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masse to the government? know, but if that scenario arises the commission should be able to take that consent and gives the process to get the information from the provider. the second scenario is the customer is a victim, and did it to no longer has access to the content of the claim that's been made to them and want the government to go get it. it. >> have those two scenarios actually occur? >> there have been a couple of instances where this has occurred, but it's not common. what we're concerned about is as we move to cloud computing it gets more ingrained and gets further along, these scenarios may happen more frequently. >> does the ftc have any recourse against the target of the subpoena if the target fails to do everything in his or her power to get e-mails from his service provider and get the provider to turn them over to?
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>> it does. we can file, if we're talking about an investigative demand, we can file enforcement action. at the end of the day if the customer refuses to turn the information over, we would have note the building under the pending litigation to get that information. >> under the pending legislation? >> right. >> under which -- >> under the -- >> 356? >> 356, yes. >> so that's a suggestion you have for improving? >> as. interestingly deprivation of ecpa, authorize it to turn over the content with consented voluntarily to the government and which is what you make sure there's a parallel provision that allows the government to compel in those circumstances. >> is a target investigation has intentionally used an internet provider that will not cooperate with the ftc, so that target can
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pretend to consent, but then in effect use the refusal of the internet provider as a very dear. is there anything the ftc can do to penalize the target? if you understand my question. >> yes. we can seek to compel if we're talking about a an investigative demand but ultimately we don't have the authority to penalize anybody. >> well, i welcome your suggestions for improving this legislation. as you know i'm one of the original cosponsors of s-3 56. i think it's important to strike a balance between privacy and law enforcement having been in law enforcement myself, having been a strong supporter of the worked all three of your agencies that do. and very much welcome your suggestions your and any other thoughts that you may have. thank you, mr. chairman. >> senator perdue.
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>> thank you, mr. chairman, thanks to the witnesses for your time today. obviously, we've had similar conversations where we are trying to balance my visit and enforcement come its ongoing or i applaud your efforts and your leadership in that. i look forward to debating both ecpa and the lead the pack and want to applaud the ranking member and senator leave for the hard work on these bills. ms. tyrangiel provide a quick question related to the leads act. as we know and i think you just explained, it would create double the government may use ecpa were stoking content data stored outside the u.s. but only if the account holder is a u.s. person. in all other cases involving content stored abroad in, the government to utilize the mlat process. i know doj has concerns about the leads act. what is your view on the provisions of the bill that seek to improve and streamline the mlat process?
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>> thank you for that question. improving the mlat process on an incoming basis which is what the proposal is talking about is difficult and complicated, and we very much looking forward to working with the committee on the. we did not think it's a one size fits all kind of solution, and have a provisions that apply, for instance, to require sort of online intake when not all countries actually his government e-mail is sent in the request is the sort of thing that makes this hard. so we very much look forward to working with you to address those issues. >> can you explain the doj's concerned that i think doj has expressed regarding the effect of the leads act on domestic investigations, particularly does involving noncitizens in the u.s.? >> thank you. the department would be concerned with any proposal that would unilaterally take away a
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tool that we have in order to be able to obtain information about the u.s. crime affecting u.s. victims that historically has been in place for a long time and replace it with something that would take a really long time for international cooperation of the. and it would, proposal that would also make it more difficult to get information about non-u.s. persons committing crimes in the u.s. than it would u.s. persons is also a concern for us. >> one last quick question. i want to go into the subpoena issue that was raised just a minute ago, about your agencies ability to enforce subpoenas directed on the target of a civil enforcement action. i asked that particularly because of the federal court decisions holding that an individual can be compelled to
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comply with a subpoena to produce content data that is being maintained by service provider. let's clarify that all that further if you don't mind. >> our subpoenas are not self-executing. so in other words, we need to if somebody objects to our subpoena when you to go to court and obtained a court order compelling production of the trio. that person can raise whatever objections they have with the privilege or other relevancy objections. the case law says if we show proper purpose and if the subpoenas properly tailored that it will be upheld. so in those circumstances we can attend e-mail from the subscriber at the problem as we been talking about is subscriber will often not provide you with full e-mail because they're incentivized -- definitely can't update it up to the isp that further incentivizes them not to provide us with a full e-mail. >> what is your experience with the targets that do provide that versus the ones you get to get a toward?
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>> -- the warranty. we have legally brought enforcement actions. in many cases would make a judgment. there are resources, resource constraints about bring subpoena enforcement actions and we make a judgment about whether to compel in a particular case but i will say our experience is that in certain cases subscribers provide for e-mails and others ago. that becomes clear because ashes been others who were involved in the misconduct you sometimes find the other people supply you with e-mails that the original subscriber did not and that tells you the original production was not sufficient. sufficient. >> mr. salsburg? >> we have a similar process to the sec arguments are not self-executing. we do need to go to court to enforce them as well. in our experience i think most target you should comply with our cid's. if they don't we have to make the resorts judgment culprit is a worthwhile to pursue an
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enforcement action which is pretty lengthy and may not result in us being able to get recourse for consumers quickly, or do we forego the information and tried by the necessary information in another way. >> thank you. thank you, mr. chairman. >> thank you, mr. chairman. mr. salsburg, the ftc plays a key role in protecting americans privacy and americans understandably care deeply about the privacy of their e-mails and other online documents. since the warshak decision, their expectations have largely been met in the ecpa act would assure those expectations continue to be met and i applaud senator lee and senator leahy
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for the effort. i suppose more senator leahy because he is my ranking member. so i defined, mr. salsburg, that the final portion of your testimony a little surprising. i did not expect to the ftc's bureau of consumer protection suggesting that they ecpa amendments act be significantly rewritten to give ftc brought a three to obtain a simple court order, americans e-mail content from third party service providers. and then this morning we received the commission statement expressing her concern about this proposal. commissioner brill notes that it is quote exceedingly rare it would be useful for the ftc to seek content through ecpa.
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and she highlights the cost for america's privacy as well as the constitutionality or potential unconstitutionality of obtaining content with just such a court order, or with just a court order. i realize your oral presentation today reflects only your views, but i'm interested in your views and data that you may have, setting aside potential constitutional concerns for the moment. do you have any data, any case, statistics, to support your claim that india expansion of ftc authority to obtain mail content is needed? >> let me first note that we have not sought the no content in the past, and the question is whether the economy is changing
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in a way, with the data moving to the cloud computing, that we can see it as being for siebel in the future. i don't have any empirical evidence of this but i think one of the major drivers of ecpa reform is this very notion that it is being kept in the club a third party service providers and no longer be maintained locally on people's computers. ..


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