>> to encourage private companies to share information about potential cyber threats with each other and with the federal government. in the senate work continues on gun legislation. senators return today for general debate and a vote on a judicial nomination. on tuesday work begins on amendments to the gun bill. the first amendment deals with expanded background checks. other amendments are expected including an assault weapons ban, concealed-carry permits and high capacity ammunition. senate majority leader harry reid says he'll work with republicans to give all lawmakers a chance to weigh in with proposed changes. a vote may not happen until next month. live coverage of the house on

c-span, the senate live on c-span2. >> host: amendment to the constitution reads the right of the persons to be secure in their persons, houses, pape pers and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue, but upon probable cause supported by oath or affirmation and particularly describing the place to be searched and the persons or things to be seized. the fourth amendment is our topic this week on "the communicators." our guests, two familiar faces to c-span viewers, grover norquist of americans for tax reform and laura murphy of the american civil liberties union. they are not on opposite sides on this issue, they have teamed up. laura murphy, what is this group that you've formed called digital fourth? >> guest: it's a combination of think tanks, advocacy organization toes, major internet service providers like

google, yahoo!, at&t. it's a group of interested people who want changes in our electronic communications privacy laws. and we need to update those laws. the last time the electronics communications privacy act was updated was in 1986, and a lot has changed since then. >> host: grover norquist, what kind of access do law enforcement officials, the government, have to our e-mails right now? >> guest: it's not traded as if it's regular snail mail. they can go into it if it's been parked with a third party, put in the cloud. what we need to do is just update the law to go alongside the changes in technology instead of sending each other letters, we send each other e-mail. instead of keeping your letter in your pocket or your home, you may store it in a cloud somewhere.

and that needs to have the same privacy that your regular snail mail does when the post office delivers something, and we can do that. we've updated these from time to time as technology changings. they have to do this more often because technology's been changing quicker. but you send someone an e-mail, it's like sending them a relater. it's the -- letter. it's the same thing. the fourth amendment is still there, and we move forward. >> host: also joining our round table is brendan sasso of "the hill" newspaper. >> thanks. my first question is for mr. norquist. you run an anti-tax group, i'm wondering why you think this issue is important? >> guest: well, americans for tax reform has long been interested in the whole question of taxing the internet, regulating the internet, telecommunications. i mean, everything that deals with size of government is of interest to americans for tax reform because you can't keep taxes low if the government keeps expanding what it does. if we're interested in questions of privacy for taxes and

people's economic issues, you also have privacy questions in general. so it's the piece of having a limited, transparent government that does things that are mentioned in the constitution and doesn't do those things that are either not mentioned in the constitution or specifically mentioned in the constitution on the list of things government's not supposed to do. so limited government, constitutional rule of law, it's really part of keeping taxes and cost of government reasonable. >> so one thing i think a lot of people when they hear about this issue, they're sort of surprised this isn't already illegal, they just sort of assume that the fourth amendment already protects this. and, in fact, there was an appeals without -- court decision which did hold that the police needed a warrant. right now me mail providers already say they require a warrant, so often police are going to get a warrant. so i'm wondering why is there a need to update the law?

is it possible in the next year or two maybe we could get more court decisions, maybe a supreme court decision to sort out? >> guest: well, you know if there's a big organized crime scandal it's not possible that the fbi or some other law enforcement entity would demand the production of records. so these companies are doing it on a voluntary basis. there's no law protecting them, though, and we want not just the companies protected, but we want everybody to be protectedded. because we have medical records, transcripts, all kinds of things, legal document withs that are online held by a third party, and we want our fourth amendment right when it comes to online activities because that's where the action is. we're not using snail mail as much as we used to. we're not using even telephones as much as we used to. so we want that to all be protected by a warrant requirement. >> host: laura murphy, grover

norquist, would text messages be included, in your view, under the fourth amendment? >> guest: should be. >> guest: yes, they should be. yes. i think we have a reasonable expectation. certainly general petraeus thought that his private communications were going to remain private. we all should have that reasonable expectation that when we're communicating with one person, we're not communicating with the government. and we're not laying out our whole life to the government. we should have that privacy. >> guest: we want a government to be trustworthy, but we don't ever want to say to the american people trust the government, and that's your defense against being abused. and as we see new problems, you should pass laws to protect people's privacy and their fourth amendment rights rather than say, well, the government hasn't abused those yet, why are you concerned? or the courts may come many and save the day -- may come in and save the day. okay, they might. but while we're here, why don't we make sure that the law catches up with the fourth

amendment? >> what about mobile location data? this is an issue that congresswoman lofgren has introduced a bill in the house to update ecpa. the bill in the senate doesn't address this issue. in congresswoman lofgren's view, ecpa should be expanded to also protect which cell towers your cell phone's communicating with or the gps signal. is that something police should need a warrant for, and is that something you think is important that congress address that issue? >> guest: well, two things. the digital fourth coalition is not focusing on that, it's focusing on ecpa but from a civil liberties standpoint, definitely legislation is needed to stop the unwarranted tracking of individuals because they have a gps in their phone or in their car. and so i think grover would agree that the law needs to be changed, but that's not the focus of the digital fourth coalition. >> host: well, speaking of cars and, again, the mobile and the cloud, does that affect how the

law looks at communications? if you're in your car anymore we can text and phone and etc. in our cars as well. does it affect the law at all? >> guest: i'm not sure it should. i'm not sure that they -- i mean, if you're using your phone in your car, not driving, but in the passenger seat so as to be safe, not texting, i think you should have the same as if you wrote a letter or read a letter while in a car or walking down the street. or at a restaurant. >> host: laura murphy, how often are police using these searches today? do we know? >> guest: we really don't have a way of tracking how often these subpoenas are issued, but i think the internet service providers have hinted that it's been quite often and that they're troubled by the breadth of the requests from law enforcement. >> host: how many times do the

ip, do they fulfill the requests? >> guest: well, now since the war shack decision that was issued last year or 2011? i think it was 2011. the companies have asserted their rights and said to the government we're only going to turn this over to you if you have a warrant. but that could change. so we want a law to protect that assertion of fourth amendment rights. >> guest: your fourth amendment rights don't -- shouldn't depend on being brave, and they shouldn't depend on somebody else being brave. and standing up for their rights. they really immediate to be self-enforcing, and that's why the law needs to catch up. how much abuse there is, we're not sure. on one level if there's a lot of abuse, you really need the law. and if there's not much abuse, let's hurry up and pass the law. those are both arguments for

helping the process. >> host: joining us is the president of the fbi agents' association. he's been listening to our conversation. we invited him to listen to our conversation. [laughter] agent moktika, how are fbi agents and other law enforcement, government folks using e-mail searches, and how often are they doing it? >> guest: you know, it's -- ecpa is pretty broad, and it coughed the whole range -- it covers the whole range of government. from the fbi's point of view, we're conducting national security operations that fall under one type of regulation, there are also civil inquiries that fall under a different type of regulation. since you're asking me about the fbi for the most part, when we're seeking department from service providers, the criminal justice policy is to seek a search warrant in order to obtain content.

that's not necessarily true for every branch of the government, so a distinct has to be drawn between criminal investigations and what those are predicated on and civil informations. so i'm afraid there's no one size fits all answer, really. there are all different sorts of categories. >> host: are they, are they valuable? >> guest: are the searches valuable or is the data itself that's obtained valuable? >> host: yes, and yes. >> guest: absolutely. it certainly can be. >> host: when you talk about a civil inquiry, what does that mean? >> guest: well, for instance, the fbi investigates criminal and international violations, you might have the civil rights division of the d. of justice conducting an investigation, and it's still an investigation, and they might use a subpoena to obtain data. as far as the criminal side of what the fbi does, at the moment -- because we work through the united states attorney's office which is the department of justice -- the department of justice has a

policy for e-mail content held by providers a warrant is required at this point. >> host: agent motyka, brendan sasso is here, he has a question for you. >> i'm wondering whether you think the way ecpa's currently written there's a distinct between whether e-mails are 180 days old, whether they've been opened, i'm wondering if you think that makes sense and if that's something congress should change. >> guest: well, ecpa was under review during the prior congress, it's under review by this congress. i think there's no doubt that there are going to be certain modifications made. and i also know that it's the position of the department of justice that the 180-day distinct is an artificial one. so speaking as an fbi agent, we take on legal guidance from the department of justice, so we would follow that. i think the issue from my perspective in particular is because the question so complicated, if you update and

change the laws, more changes are going to be in place that are going to make the job of law enforcement investigators more different. is there also a way to change the law to make the process better, acknowledging the fact now that department of justice wants to have a warrant, what other things are in play in terms of the changes? there are disclosure issues, and there are also emergency exception issues as well that have to be addressed if this law moves forward and if any changes are contemplated. >> host: grover norquist has a question, agent motyka. >> guest: do you think that an e-mail should have any less protection than a letter under the fourth amendment? >> guest: well, now you're asking me, again, when i -- that is my personal opinion at this point as an active duty fbi agent. i'm simply here to discuss the policies. i really am not able to get into my personal view as far as how i feel about those questions. as i said, the department itself

has to follow the regulations, it is treating the content of e-mail communications as requiring a warrant issued by a court. >> guest: that strikes me as common sense. apart from your own personal opinion, what is the argument that an e-mail is different than a letter for purposes of the government coming and reading other people's mail? >> guest: it isn't so much the point of view as to what it is or it isn't, it's the mechanisms for obtaining it. prior to some of the contemplated changes, there was a situation where administrative subpoenas could be issued for content that was older than 180 days, and those were very specific, narrow categories. so, i mean, as far as the haw is concerned, right mow the law isn't treat -- right now the law isn't treating it differently except for content that's older than 180 days, and that is being looked at differently right now under present law, and that's where folks are seeking to make adjustments. but now under present law and policy, anything that's 180 days

or less is treated the same way as a written communication in a letter. >> guest: yeah. i just want to clarify for the average listener, it's our understanding that subpoenas are used for e-mail that is older than 180 days, not warrants. and that the justice department has not implemented a new procedure even though they've said on record before the judiciary committee that there's no principled distinction. i mean, that came out of 1984 when people were only allowed a certain number of e-mails, and they were stored for a limited time and downloaded onto your private computer. now the e-mails are sore -- stored for an infinite period almost on these servers of the internet service provide aers. so the law is too old to fit the current circumstances, but i think grover's point is a good

one, you know? what is it about e-mail that deserves any less protection than your file cabinet? someone comes into your office and wanted to search your file cabinet, they have to have a warrant. >> guest: or an old letter or an old e-mail. if a letter's been in your house for six months, should it be something the government should walk into and get without a warrant? if not, how do you make the argument that an e-mail somehow loses its fourth amendment rights when it gets old? >> host: agent motyka, any response to those comments? >> guest: i'm not sure the government is making that argument. i think the government is saying, go ahead, congress, take a look at this. make your updates, but, please, keep our concerns uppermost, and let's insure that we don't create an impediment to effective information even while we update this to take into account on your digital age? >> host: conrad motyka, is this a conversation that you and other fbi agents have regularly

about e-mail? >> guest: um, not from a philosophical perspective. to be honest, we're more focused on the practical aspect. >> host: right. >> guest: so the practical aspects are if you're seeking content and the obstructions are obtain a warrant, then that's where the effort goes in furthering the investigation. i mean, obviously, we carry out, you know, the instructions of the government and the policies of the government, and that's what we follow. >> host: and one final question from our reporter, brendan sasso. >> well, i actually wanted to get a response from our digital fourth guests here to something agent motyka brought up. there's a 2006 in the his mind -- distinction in his mind between civil and criminal, so if it's an antitrust or civil rights investigation, they midnight not even have warrant authority. >> guest: right. >> host: so should they be ail to search e-mails with just a subpoena? >> guest: ecpa as it's drafted allows those agencies with

subpoena power like the ftc to continue using that subpoena power, and they don't have the authority to, as you say, produce warrants. so those agencies are given a carveout. but when it comes to criminal, routine criminal investigations, we think that, um, you know, law enforcement should be required to get a warrant. >> guest: look, if the government's going to read your mail and then try and put you in prison or just read your mail because it violates your privacy rights, i think even some of the civil questions when you're getting -- when the government's getting in and it's going to decide how you can run your life and what you can't do or whether two companies can merge or whatever, that's a pretty big deal. and it's as if it was a massive fine be you went and delayed something from happening that was otherwise going to happen. so i would tend to say you want to look at people's stuff, get a warrant. >> host: konrad motyka, final

word from you. >> guest: yes. i think my final word is fbi as a whole have enough work to do based on the threats they face that they really don't devote any time whatsoever to frivolous, simply looking or attempting to look at people's e-mails. we're not even allowed to do that. we can't do that under present policy, and we don't do it. >> host: thank you for your time today, conrad motyka. laura murphy, what did you hear from him? >> guest: well, i heard an overgeneralization about their procedures. we know, for example, that the fbi has placed certain communities under surveillance; mosques, houses of worship, interest groups like the russian community in new york, the chinese community in new york, and they have broad, broad surveillance powers. and we think that those, that

surveillance goes beyond the fourth amendment. so i don't know that there's always a criminal predicate. in fact, i'm sure there is not always a criminal predicate before the fbi opens an investigation or seeks information that is, that most people would consider private. >> host: grover norquist? >> guest: well, i was glad to hear him say we're not doing things that might become illegal, which is good. so let's make them illegal, let's require a warrant. there's nothing -- i mean, to go into people's mail and to read their mail is an incredible intrusion and a possible threat to the fourth amendment rights that people have, and it ought to be if not difficult, at least ought to have a hurdle which is proving that you have a reasonable expectation, there's a reason you're doing this, and there's a reason that the government has -- the government has a reason to do it. what's this got to do with the government? and the laws. so i was glad to hear this.

we don't do it. my answer is if if you're not doing it, you won't mind if we pass a law that says you need a warrant to do what you say you're not doing. and i think we can -- look, we need to move forward both in the house and senate in regular order, take up all the concerns he wants to raise and be more specific because when we tried to get specific, he begged off that was above his pay grade. that's fine, then bring the justice department guys into the room and give it your best shot. but let's have that kind of discussion. i really do think regular order on the senate side, on the house side they're not exactly the same, so let's look at 'em, let's talk about it, and let's keep going back and revisiting this every few years as technology makes it easier for the government to peek over your shoulder or read your stuff and make sure we're not losing the second amendment to changes in -- i'm sorry, fourth amendment -- >> guest: forty -- forty

amendment. >> guest: i'm sorry. [laughter] changes in technology. >> host: recently, the house judiciary subcommittee held a hearing on the issue of ecpa, and the tacting assistant -- the acting assistant attorney general was testifying. here's a little bit of her testimony, want to get your reaction to this. >> some have suggested that the best way to enhance privacy under ecpa would be to require law enforcement to obtain a warrant based on probable cause to compel disclosure of stored e-mail and similar stored content information from a service provider. we believe that this approach has considerable merit provided that congress consider contingencies for certain limited functions for which this may be pose a problem. 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 the, civil investigators enforcing civil rights, environmental,

antitrust and a host of other laws would be left unable to obtain short communications from providers if they could no longer use the subpoena. >> host: laura murphy? >> guest: we're not talking about getting rid of all subpoena authority. let's make that clear. we're talking about in the course of criminal investigations, not civil investigations although, grover, i think you make, raised some great concerns in that area. but in the course of criminal investigations, why shouldn't you have probable cause before you go snooping in somebody's text messages or e-mail messages or medical records or financial records? why shouldn't you have probable cause? why should you use the resources of the federal government to investigate people unless you have solid reasons to do so? so i, you know, i think the justice department's concerns are addressed in the legislation. there's a carveout for national

security, there's a carveout for pedophile investigations, there is a carveout for those civil action subpoenas that don't result in a criminal sanction. but if you're going to be investigated and the path that you're on may lead you to lose your liberty by jail or even by the death penalty, it seems to me the government should have enough information before they pursue that trail to probable cause to get a warrant before they go through your property and goods and e-mail. >> host: brendan sasso. >> i'm wondering a political question of what you think the likelihood is that this is going to get done this year, this congress and what the purpose of this new group is and what actions you hope to take to get this enacted. >> guest: i think we passed something very close to what's in the senate right mow this year, maybe go as far as the

house bill which goes a little bit further in what they restrict, and i think it's likely to happen this year. the biggest challenge is the immigration legislation which is going to take up everybody's bandwidth. and i'd rather do this first and then emigration because they've got things to argue about over immigration. but as long as it happens this year, i think we'll be in good shape. >> guest: yeah, i agree. i think this is a breathtakingly broad coalition, and, you know, from the chamber of commerce to the aclu, you don't get that kind of breadth. and so we speak for a lot of americans who want their privacy. and so i can't see any major party opposition in the future, i just see -- as grover said -- maybe time limitations. >> guest: and you saw both the fbi agent and the folks over at justice begin to not walk back criticism, but actnology, yes, this needs to happen, something

like this is going to happen. please watch out for certain specific concerns we have which i think we'd argue are being looked at, but that's what regular order in the house and senate committees and on the floor means. you can look at all that stuff. nothing's being rushed through. nothing should be rushed through. but one of the things is these are old laws that we're updating, and technology has moved past which make us more vulnerable to government snooping. >> host: what about the internet service providers? laura murphy, you mentioned some of them are members of your coalition. have they been resistant to these requests for the electronic communication? does it make them uncomfortable? what's their positioningsome. >> guest: i think it does make them uncomfortable because people are now going to cloud services in europe because they have higher privacy protections. you know, they're uncomfortable because it affects their bottom line. they can't guarantee to their customers the privacy of their information. and that's a big deal.

there are a lot of people who will, who took themselves off of facebook until they changed certain privacy policies. so i think to the extent it affects businesses' bottom lines, they're highly motivated to see the law updated. >> host: grover norquist, final word. >> guest: i think this is important, it's very nice that there's a very broad center-right, center-left coalition that really everybody is concerned about privacy, and the great thing about the constitution is it's what we organize the country around x it's nice to see that while politicians in washington can throw rocks at each other all the time about various things, on fundamentals we're all on the same side. and that includes people who work for the government. they don't want to be abusive in their relationship with the american people any more than we want them to have the ability to be abusive. >> host: grover norquist, americans for tax reform. laura murphy, american civil liberties union. brendan sasso, "the hill." this is "the communicators" on c-span.

>> c-span, created by america's cable companies in 1979, brought to you as a public service by your television provider. >> just ahead, film maker ken burns talks about his new documentary, "the central park five," which recounts the 1989 case involving the wrongful conviction of five minority teens accused of rape. and then in an hour we'll be live with a discussion on the situation on the korean peninsula as analysts examine the internal politics in pyongyang, the prospects for war and the challenges for the u.s. in dealing with a nuclear north korea. and later more live coverage from the national press club as iceland's president speaks about the efforts of arctic nations to protect the region's resources. and at 2 p.m. eastern, the senate returns for general speeches followed later with

debate and a vote on a judicial nomination. >> the funeral for former british prime minister margaret thatcher will be held wednesday in london at st. paul's cathedral. bbc1 will provide live coverage including comment tear and a funeral procession ahong a route lined by military personnel from the palace of westminster to the cathedral. many current and former world leaders are expected including queen elizabeth ii. this will be the first funeral she's attended since winston churchill's in 1965. it all begins at 4:15 a.m. eastern here on c-span2. >> orphaned at age 11, she lives with her favorite uncle, james buchanan. years later he becomes president and because she's unmarried, she serves as white house hostess. she's the first to be called