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May 12 — Members of the Securities and Exchange Commission unanimously oppose a piece of legislation that would require the federal government to get a warrant in order to obtain old e-mails during an investigation.
At issue is H.R. 699, which passed the House unanimously in April. The bill would undo part of the Electronic Communications Privacy Act that considers e-mail messages more than 180 days old “abandoned” and allows them to be gathered by investigators with a subpoena or a court order instead of a warrant.
Because the SEC lacks the authority to obtain criminal warrants, the bill would stifle the agency's investigative powers and make it impossible to obtain information from internet service providers, SEC Chairman Mary Jo White and Commissioners Kara Stein and Michael Piwowar said in a May 11 letter to Senate Judiciary Committee Chairman Charles Grassley (R-Iowa).
“This would be true even in situations where the ISP is the only available source, such as when a subscriber deletes his emails, or when hardware is lost or damaged, or the subscriber flees to another jurisdiction,” the commissioners wrote. “In fact, the bills would provide a haven that is not available for paper material and allow wrongdoers to conceal their misdeeds from civil law enforcement.”
Grassley has indicated the committee could take up the bill soon.
The SEC has urged lawmakers to add provisions allowing civil law enforcement authorities to access information with a court order and notice to the respondent (230 SLD, 12/1/15).
White also wrote a New York Times op-ed piece May 12 urging changes to the law.
“If the bill, as written, becomes law, civil law enforcement would be deprived of existing tools to obtain critical electronic evidence of wrongdoing, and people committing fraud could make their digital trail vanish with a single keystroke,” White wrote.
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