Securities Law Daily provides daily coverage of developments in the regulation of federal, state, and international securities and futures trading, with objective coverage of the...
By Alexei Alexis
Nov. 30 — The Securities and Exchange Commission wants to be exempted from House legislation that would make it more difficult for government agencies to access certain electronic communications for law enforcement purposes, but the agency's request faces opposition from Google Inc. and other bill supporters.
The SEC and Google filed dueling comments on the issue for a Dec. 1 hearing scheduled by the House Judiciary Committee.
Under the bill (H.R. 699), which would update the Electronic Communications Privacy Act of 1986 (ECPA), law enforcement agencies would be required to obtain a search warrant based on probable cause before accessing e-mails and other online communications stored by service providers. The measure would eliminate a “180-day rule” that has been used to justify warrantless access to older e-mails.
“The bill in its current form would harm the ability of the SEC and other civil law enforcement agencies to protect those we are mandated to protect and to hold accountable those we are responsible for holding accountable,” Andrew Ceresney, director of the SEC enforcement division, said in testimony prepared for the House hearing. “There are multiple ways to modernize ECPA consistent with the law that would not impede our ability to protect investors and the integrity of the markets.”
The SEC has raised similar concerns about the Senate version of the ECPA overhaul legislation (S. 356) (180 SLD, 9/17/15).
Ceresney proposed special rules for the SEC and other civil law enforcement agencies. Instead of having to obtain a warrant, they would be required, where possible, to seek electronic communications directly from a subscriber before going to an Internet service provider. The subscriber or customer would be given the opportunity to challenge the request in a judicial proceeding.
The SEC plan faces opposition from privacy advocates as well as from technology companies, which have strongly endorsed the House bill in its current form.
“H.R. 699 represents an overdue update to ECPA that would ensure electronic communications content is treated in a commensurate manner to other papers and effects stored in the home, which are protected by the Fourth Amendment,” Richard Salgado, Google's director of law enforcement and information security, said in testimony written for the hearing. “It is long past time for Congress to pass a clean version of H.R. 699.”
Salgado said Congress should reject proposals that would create a civil agency carve-out.
The House bill was introduced by Reps. Kevin Yoder (R-Kan.) and Jared Polis (D-Colo.) in February. It has more than 300 cosponsors, including senior Judiciary Committee members such as Reps. James Sensenbrenner (R-Wis.), John Conyers (D-Mich.) and Jerrold Nadler (D-N.Y.).
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