expands difference closure beyond 527s to other groups. second, senator mcconnell says he now opposes disclosure because it will hurt our democracy and undermine free speech by exposing people who spend money in elections to -- in election campaigns to such awful harassment i effectively denies them their first amendment right to free speech. and in his speech here at aei ex-urged all of you to read justice thomas' partial defense in citizens united on this very matter in doing so, senator mcconnell failed to disclose that all of the other eight justices, in citizens united, rejected that argument. and that the supreme court has already developed mechanisms to address cases of extreme and demonstrable oppression. the supreme court in cases

ranging from buckley very chalet hoe, to citizens united to the recent mcchurch con case, have reheat -- repeatedly argued disclosure advances public interest and the court rejected the arguments put forward by senator mcconnell and justice thomas. the courts have put forward three main arguments in favor of disclosure. one, the public interest in knowing who is spending money to try to influence their votes. two, that transparency serves an important anticorruption interest, and, three, that disclosure helps to enforce other campaign finance laws like the prohibition on foreigners or foreign owned corporations spending money in u.s. elections. here's what the sprem court said in buckley with respect to

disclosure of both direct contributions to campaigns and independent expenditures. i quote: disclosure requirements deter actual corruption and avoid the appearance of corruption by exposing large contributions and expenditures to the light of publicity. a public armed with information about a candidate's most generous supporters is better able to detect any postelection special favors that may be given in return. in citizens united, eight of the nine supreme court justices, including justices roberts, kennedy, scalia, and alito, found that disclosure requirements for independent spending groups, quote, do not prevent anyone from speaking, end quote, and serve the important public interest of, quote, providing the electorate with information about elected

related spending sources, end quote. they said, this -- again i quote -- allows voters to make informed decisions in the political marketplace. as aeis norm -- it is clear from justice kennedy's opinion that disclosure was a key factor in unlocking the rest of the citizens united decision. ment...

that was eight at supreme court justices. those are the big left-wingers company in the benefits of disclosure and transparency. if you look at the recent mccutcheon case the court again ran for and accordance of disclosure citing their early precedent. now in the decision this court has addressed the specific concerns raised by justice thomas. justice thomas observed in 1958 case the court declared that alabama's low requiring individuals to disclose their contributions to the naacp infringed on the right of free association because it exposed those individuals to physical

severe threats and retribution. the court in the naacp case put for district test for groups seeking to avoid disclosure. and in the later 1976 buckley decision the court rejected a challenge to disclosure requirements based on the earlier naacp case. the buckley court found that the strict tests for avoiding disclosure in naacp did not void the campaign finance disclosure requirements that they upheld in buckley and the buckley court did say that a group could seek an exemption from the disclosure requirements if it they could demonstrate as the naacp did in the alabama case that would be subject to an actual not speculative verdon on the freedom of association. and in fact the fec has

determined that the socialist workers party which they found based on history of violence harassment and threats to quote has met that task and exempted them from current disclosure requirements. i also want to emphasize that the d.i.s.c.l.o.s.e. act addresses these concerns. it does not threaten freedom of association in any way. any organization can continue to receive anonymous contributions to support their general mission however the extent the organization was to spend money to elect candidates they could set up a separate election spending account and disclose the sources of contributions above $1000. moreover the d.i.s.c.l.o.s.e. act does not displace the current law that allows groups to avoid even those disclosure requirements if it can meet the

strict test established by the ugly court. but it's a tough test. as justice scalia wrote in his concurring opinion in the dough of the reid case that upheld disclosure requirements in the case about petitioner signers for a ballot measure which is a less compelling situation then disclosure of clinical contributions. justice scalia wrote quote requiring people to stand up in public with their political acts fosters courage without which democracy is doomed. that is justice scalia. now, you can't avoid disclosure because you might get your feelings hurt or face public backlash. george soros has been subjected to lots of criticism as have the koch brothers. that's part of the rough-and-tumble of a vibrant

democracy and spirit event. individuals and corporations should not be able to spend millions of dollars on tv ads eating up or praising can't -- beating up or praising candidates without telling the public who they are. as justice scalia said, that state of affairs quote does not resemble the home of the brave unquote. finally, senator mcconnell has been conveniently inconsistent in his application of his concern about alleged harm of disclosure. currently candidates for federal office must disclose all the contributions their campaigns receive above $200 up to the current limit of $2600 per election. senator mcconnell says he is still in favor of those disclosures and the disclosure of contributions to political party organizations. so i ask you why is it in public

interest to require disclosure of a 200-dollar contribution to a candidate's political campaign and not to the public interest to disclose a 200 million-dollar expenditure to elect that candidate? weiss is okay to subject people who contribute $200 directly to a candidate's campaign to this alleged infringement of first amendment rights had not corporations or individuals who spend millions of dollars to elect or defeat a candidate? that is a whole double standard. so it's time for senator mcconnell to stop saying the d.i.s.c.l.o.s.e. act is some kind of lefty conspiracy or pretend that it's designed to squelch free speech. it is designed to accomplish what he previously said he supported, more disclosure, not less. the fastest way to implement the public support for broad disclosure and transparency would be to pass the current d.i.s.c.l.o.s.e. act.

as i said earlier i hate have been more than happy to work with senator mcconnell to resolve in the legitimate concerns. now, in the meantime because of the lack of congressional action on the disclose at there are other efforts underway to address the pieces of this issue. the fastest way to do that is to look at some of the issues relating to 501(c)4's because the one thing that has received the most attention deals with the irs regulations regarding these organizations, 501(c)4's that include groups like karl rove's crossroads gpss supports republican candidates and the priorities usa group that supported president obama in the 2012 election.

why have these 501(c)4 groups gotten so much attention in the aftermath of the citizens united decision? because in the citizens united the supreme court struck down laws that barred corporations from spending money to electing candidates to office. as a result for-profit corporations and not-for-profit corporations can spend monies on these elections and the c in 501(c)4 stands for corporation and 501(c)4's have become the primary vehicle of choice for individuals and corporations that do not want to disclose to the public the monies they spend to try to influence the public's vote. in the crossroads for example has two distinct organizational forms. first there is american crossroads super pac which is organized under 527 of the irs

code. the first -- the second is crossroads gps organized under section 501(c)(4) of the irs code. so what's the main difference? remember i earlier mentioned that bipartisan 92-6 vote in the senate in june 2000 that required 527's to disclose their donors? i have to disclose if you give to a 527 super pac whether it's american crossroads or whether it's a democratic leaning super pac, contributions are disclosed. but that disclosure requirement passed in 2000 does not apply to 501(c)4's. there was less focused on requiring disclosure from such corporations prior to the 2010 citizens united decision they were not allowed to spend any number -- any money for the express

purpose of electing a candidate out that they were slowly emerging with vehicles known as sham issue ads designed to focus on the issue but disguised as focusing on issue but designed to support a candidate. now, remember in 2000 senator mcconnell justified his opposition to requiring 527's to disclose on the ground we should have more disclosure, not less. in fact he said we should require disclosure from all and i quote the major political players in america unquote. well, it is indisputable that in the aftermath of citizens united 501(c)4's or major political players. according to the center for responsive politics the amount of secret money being spent by title i see for's showed up -- shot up from virtually nothing to over 256 million in the 2012

election cycle which comprises 85% of the 300 million in the secret money spent in 2012. so there you have it. if you want to hide money being spent to elect candidates give it to a 501(c)(4). indeed the political director of crossroads gps has acknowledged that 501(c)(4) was formed quote has some donors didn't want to be disclosed. now, there is a catch that explains the underlying reason for all their recent focus on the irs actions relating to 501(c)4's. under the, and bear with me because it's a twisted story but it's really important that everybody understands. under the irs guidelines that replaces the 1950s and

organization can qualify for 501(c)4 status so long as it's quote primary purpose is social welfare and education. those are the 1950s regulations for the irs. but if you're in station spends more than 49% -- so that has to be social welfare, primary purpose of the they spend more than 49% on political activities and nonsocial welfare activities like not trying to elect candidates that organization is not eligible for 501(c)4 status. this means in order to enforce the guidelines the irs has to examine the activities of these organizations to determine if they meet the requirements. and after citizens united the irs faced an explosion of applications from groups applying to 501(c)4's.

the applications jumped from 752 in 2010 to 3357 in 2012, 90% jump. that's why you hear the stories stories about the irs seeking information from these groups about their activities. now, obviously the irs should and must apply these rules in a uniform way. in my view we should never have involved the irs in the business of having to investigate organizations on the right or the left to make these determinations. and here is the really interesting thing. the underlying statute, the written law passed by congress never envisioned putting the iras in a position. this statute never called for the primary purpose test the irs

develops by regulation in the 1950s. indeed, section 501(c)(4) of the internal revenue code this statute provides for tax exemption to and i quote, civic leagues, organizations not organized for-profit but operated exclusively for the promotion of social welfare. it doesn't say a 501(c)(4) should being gauged primarily in social welfare activities that can spend 49% of its funds on political ads. it doesn't say that. i don't know of any dictionary where exclusively has come to mean primarily. and here's the other thing. everyone in this room should react. while there may be a fuzzy line between what constitutes social

welfare activities versus certain political activities involving advocacy under no circumstances does the intended definition of soap social welfare activity include spending money to defeat or elect candidates for public office. in fact the irs regulatioregulatio ns state clearly that quote the promotion of social welfare does not include direct or indirect participation in political campaigns on behalf of or in opposition to it candidate for public office. so you have a situation where the plain meaning of the irs code, the statute as written by congress, never envisioned these 501(c)(4) organization spending a dime to help elect or defeat candidates for public office and yet they are now being used upon millions of dollars of undisclosed monies for that purpose. nobody really paid much attention to this discrepancy

between the written law and the irs guidelines until after citizens united because until then even under the primary purpose past no corporation could spend money for the express purpose of electing or defeating candidates. citizens united change that and now as more and more 501(c)4's get into the business of spending secret money to elect or defeat candidates they discrepancy has become blaring. so blaring that in april of last year i sued the irs to enforce the plain meaning of the written statute. i would also point out that the inspector general of the irs who issued a report entitled inappropriate criteria were used to identify tax-exempt applications to review also recommended that the iras look into the measure of primary

activity. since then, the irs has begun to review this discrepancy and as a result our lawsuit has been withdrawn, at least for now but please do not fall for the partisans right that this iras review is some kind of political conspiracy to silence conservative groups. the reality is that these groups are now being used on the right of the left for a purpose that was never intended, to funnel undisclosed monies into political election campaigns. if you want to spend unlimited amounts of money to defeat or elect candidates for public office there's a simple choice grade give it to a 527 organization. as we have discussed the differences 527's are required to disclose to the public. let me in and with an appeal to work on a bipartisan basis to restore some faith in the campaign-finance process by

providing for the disclosure and transparency supported across party lines by over 85% of the american public and by eight of the nine supreme court justices in citizens united. in 2007 now speaker boehner said in a quote we ought to have full disclosure. in 2010 representative cancer now the republican leaders said in that quote anything that loses back towards the that notion of transparency and real-time reporting of donations and contributions i think would be a help of move towards restoring the confidence in boats and in 2010 represented mccarthy now the republican whip said and i quote the best way, the fairest way is greater transparency. let people understand where it, meaning the money, is going and what is happening to it. now that these three gentlemen are the three most powerful

members of the republican majority in the house the american people really should get a vote on the d.i.s.c.l.o.s.e. act or a version of it. why should the public continued to be kept in the dark about who is spending gobs of money to influence her choice for candidates? after all it was senator mcconnell who said why would a little disclosure be better than a lot of disclosure? indeed, why would it? let's do something about it and as i said to arthur earlier senator mcconnell wants to come back here it to aei for the third time this year to discuss this matter i would be happy to join him here at this podium. let's get this done for the country and the american people and the strength of our democracy. thank you all very much for attending this evening. [applause] i would be happy to try to answer any questions.

>> gerald chandler. would you apply disclosure to an individual? suppose i had $100 million i went to an advertising agency and i say i wanted you the best best you can to tear down the character of the koch brothers for some other thing. would that have to be disclosed? >> look, let me agree with one thing. they are different poor nations of one disclosure may or may may not be appropriate. what i'm focused on right now is an area where we have all agreed it's been appropriate in the spring for is judged to be appropriate. that is when you were giving money for the purpose of electing or defeating candidates whether it's direct or frankly indirect in certain cases. in terms of other hypotheticals frankly i would have to take the time to think it through. i'd have to think through all the implications. what i'm talking about here is something where i think there is broad agreement. at least there used to be broad

agreement that yes you can imagine lots of different scenarios and local jurisdictions or states where they pass local ordinance for laws requiring disclosure and i would argue on a case-by-ccase-by-c ace basis to see whether it's appropriate trait i also want to point out again that the d.i.s.c.l.o.s.e. act actually allows for these anonymous contributions to an organization so long as it's in accord -- in coordination with the primary purpose and that creates a special ability for that organization to create a special account that wants to get involved in campaign we spending to the candidate. the answer is i would have to look at other hypotheticals on a factual basis but what i'm talking about today is broad bipartisan support examined by the supreme court and eight of

the nine justices came down on the side of --. >> norm ornstein. there is one area that you didn't mention very much. as you noted congress in to 2000 did act to enhance disclosure. there was a significant amount of the bipartisan game campaign reform act of 2002. we have the supreme court rulings that the federal election commission has issued regulations that basically have narrowed disclosure to a level that is almost certainly impossible to meet and that is people giving money specifically for an advertisement. now i know that you sued as well the federal election commission. you're a very litigious guide when it comes to disclosure and in repeated instances you have

and judges have rebuffed those regulations. in this particular case a district court judge did so and the panel the d.c. circuit senate back. could you talk for a couple of minutes about the dysfunction of the federal election commission and its role in the problems that we have but also the state of play in that particular area? >> let me start with the latter the state of play in that case because you are right we essentially won the case in the federal district court level on appeal. the court actually found against us in part but then sent the case back to the federal district court level to look at the other piece of the case. in fact it's pending as we are gathered here now and we have some hope and optimism that the judge will weigh all the equities and i think it's very clear it's on our side which as

you have indicated. it's another case where the regulations do not comply with the plain meaning of the statute. very similar to the situation. but the statute says is that if you make that contribution and they spend it for -- it should be disclosed but with the regulation was narrowed to say it's only disclosed if i as an individual essentially say here is my contribution and i want to spend for political purposes in a particular election. that's not what the law says. that is the way it was defined so yes we are hopeful that the court will again say that the regulation does not comply with the plain meaning of statute and overturn that. with remit respect to the ftc as you know it's a dysfunctional organization. unfortunately it has been very

polarized and obviously everyone sees the equities differently but again when it comes to, i was pleased that the ftc did not actually challenge if i recall correctly the lawsuit in that case. maybe some of them tried. norm i don't have a very good answer to how we can resurrect the ftc. i think right now for those of us who believe in disclosure along with 85 plus% of the american people and eight of the nine supreme court justices united we have to pursue these other areas. i focus on 501(c)4's because they have been in the news lately but you also have also 501(c) organization, fives and sixes and they resent represent

some of the secret money flowing into these campaigns. i mention there are $300 million of secret money flowing into these campaigns and in fact justice roberts cited that figure using the mccutcheon case. 256 million of that tragic million is from 501(c)4's. that is what the irs review is getting at but the d.i.s.c.l.o.s.e. act gets it everywhere. so that is why it's the simplest cleanest way to deal with us because it addresses frankly the broad range of issues that eight of the nine supreme court justices discussed in citizens united. yes. >> thank you congressman van hollen. what impact if any do you envision your legislation having on the learner matter before

congress? on the learner matter that's currently before congress, lois lerner? >> oh i'm sorry the lowest learner matter? the legislation is not related. the issue in the learner matter goes to this question of how the irs went about trying to make determinations about whether the primary purpose of these 501(c)4 organizations were social welfare or their primary purpose was political. as i indicated after citizens united you had a flood of new applications for 501(c)4's a 90% increase so here's the irs. it's supposed to make this determination under the regulations the determination that was never established by statute. if you are the irs folks

wherever you are in the country and you are getting these applications how are you supposed to go about making that determination? you have asked the 501(c)4 ford's documents for what it does and then you have to first determine whether it's political activity or social welfare and then under the misguided and frankly under the regulation ever supported by the statute you have to german whether that's 51% or 49%. what the irs did was they ended up, they began to put up these phrases to try to capture groups that they thought may be involved in political activity more than social welfare activity and they fumbled it. they went and put in key phrase tea party. i will say they also putting key phrase progressive groups. happened that there were a lot more applications coming i

believe probably on the right than the left but they put in those key words as a shortcut because they were getting flooded with these applications. now that was inappropriate to have the key word but my point here is the irs was never intended to be in that business in the first place. under the statute you didn't have a primary purpose test so that i arrested have to go around saying are you 51% social welfare welfare or for two uppers and political? they set exclusively for the purpose of social welfare activity. that's why it's important we get back to proclaiming the law that's why we filed a lawsuit against the irs and that's what i hope they finally get it right and will avoid these other issues.

>> luke from the center for competitive politics. you speak about the broad bipartisan support for disclosure in hopes that it will reemerge on capitol capitol hill and he referred several times to the aid of nine citizens united justices endorsing disclosure but aren't those justices and isn't that broad bipartisan support for the existing regime of disclosure which exists for primarily political organizations contributions and expenditures by candidates parties pacs and super pax? is that different to do with the d.i.s.c.l.o.s.e. act puts forward to push disclosure into organizations that are not primarily political such as non profits or business associations so is the disagreement we are seeing truly new or have proponents of disclosure move the goalpost and push the conversation into a new area compared to disclosure in the past? >> no one has moved the goalposts. you gov back to buckley v. valeo they looked at these issues and they found for the reasons that i described that

disclosure not just contribution that independent expenditures was in the public interest. again why? because voters have a public interest in knowing who was spending millions of dollars to try to influence their vote because transparency provides for the anticorruption safeguard and as i said because it also allows greater ability to enforce other parts of campaign finance law like our law prohibiting foreigners and foreign corporations from spending money in u.s. elections. by the way a foreign election can contribute to a 501(c)4 so disclosure helps us in force that. right now how do you know whether the 501(c)4 is not using the foreign corporations for political purposes? again that's one of the three main reasons courts have talked about in disclosure in citizens

united for eight of the nine supreme court justices also talk more broadly about disclosure way beyond contributions to political campaigns. they are very clear on that point. crystal clear and in fact i quoted a section where they also talked about shareholder. corporate disclosure to their shareholders. that's in the supreme court. current law doesn't require that our d.i.s.c.l.o.s.e. act would require that. it would require corporations to notify their shareholders about political contributions they are making which as it is a nine supreme court justices that would allow shareholders to determine whether not the corporation was pursuing their shareholder interests. there's a situation with the supreme court went out of its way to talk about the benefits of expanded disclosure that we don't have under current law. the record is clear where the court is on this and they have discussed the issues that have been raised by senator mcconnell and specifically

debated the issues raised by justice thomas. they have rejected them. what is different is that as i said before citizens united you didn't have the issue of 501(c)4's spending money directly to elect candidates. they were by statute corporations and 501(c) fours are nonprofit corporations. by statute they were prohibited from doing that so there was no disclosure regime in place for that. but there was. congress made an intentional decision and that 2000 vote to require disclosure of 527's that were involved in spending money to elect candidates. 501(c)4's were not allowed to do it. it was totally after citizens united but that became a big issue at least with respect to direct advocacy.

syndicated there's a whole mother issue related to what i refer to as sham issue ads and that's a whole mother conversation. but again the report has been crystal clear that this disclosure requirement is good for democracy not just disclosure of contributions to people's political campaigns but the expenditures of money to try to elect the candidates. very clear. yes, i'm sorry. in the back. >> steve and i work in the city. thanks a lot congressman for joining us. good to see you as always. i'd like to take the opportunity to thank author -- arthur and the dalai lama and bill gates. you're in good company.

what do you say serve two people who view mccutcheon citizens united is another move by the court to become very pro-business in the groups that will grant cert to? >> well let me just say i mentioned at the outset that while i had issues with the final ultimate decision of citizens united my focus here today was on disclosure but since you raised the issue look there are serious questions that go all the way back to buckley v. valeo at which point in time the court essentially equated the expenditure of millions of dollars by one individual with free speech and so you have seen this steady rise of money being being -- more and more money being pushed into politics and organizations. my point here today and we could have a long debate about

buckley v. valeo citizens united and the fact that it equated free-speech rights of corporations with individuals for the purpose of political gain. i would love to have that today. but i really want to focus on today was an area where there has been political consensus in the past. as i sided quotes from a lot of my colleagues who were the three most powerful house of the republican majority i quoted senator mcconnell's statement about more disclosure is better disclosure. i really hope that fair-minded people who actually dig down into all the twists and turns of the story will dismiss what i think of ben obviously blatant politically convenient remarks by some people about disclosure. it's just wrong for senator mcconnell to stand at this podium and say that the purpose of the d.i.s.c.l.o.s.e. act is

to go after conservative and right-leaning groups. again i have got the bill right here. show me senator mcconnell where does that. i will work with him to address any concerns. the reality is there aren't any and it's been widely discussed. i want to focus on that issue. i should also say i'm really pleased that my wife catherine is here this evening, this afternoon who requires full disclosure. [laughter] >> i and can doyle from bma. i've a question assuming the d.i.s.c.l.o.s.e. act doesn't pass soon or there are other legislative developments which doesn't look like they're going to be how do you see this developing in the current election cycle in terms of in

the last election there were more republican groups that were interested and active in supporting candidates. do you think there's going to be a more evenness among democrats and republicans, a lot more democratic groups that are getting involved in this? >> couple of things. first in your initial statement. i'd be with you based on the current position of speaker boehner and the position of senator mcconnell and enough republican senators to filibuster that unfortunately prospects in this congress the passage of the d.i.s.c.l.o.s.e. act is not great which is why decided to spend the time i did on the issue of the 501(c)4's and irs regulations. as i said it doesn't constitute all of secret spending, constitutes the overwhelming majority of secret spending to 501(c)4's and that's an active

issue going on right now. as i said if they don't meet the tests we reserve the right to refile our lawsuit. this is a case where the plain meaning of the law is so clear. in the meantime look, the nature of politics is that people will look at their opportunities in terms of how they are going to be raising money and participating in up political process. i don't know how this will play out. as you indicated for whatever reason a lot of groups on the right have chosen 501(c)4's but there are also groups on the left who have checked chosen 501(c)4's is perfectly possible that will increase over time. i don't know. all i know is that i think whether it's on the right or the left the public purpose is served by disclosure. that's why i wanted to focus on that today. >> thank you representative van hollen. >> thank you very much.

[applause] [inaudible conversations] refor.

this is an hour and ten minutes. >> great. thank you. thank you for hosting this event. as tim said before i introduce our panelist, the topic of conversation today is the electronic communications privacy act which is one that provides a little bit of context for that discussion before we get started. the electronic communications privacy act or ecpa was passed in 1986. congress passed ecpa in order to provide privacy protection for electronic communications.

congress discovered in the 80's that technology had outpaced the privacy protection it had provided for voice communications when it passed the wiretap act in 1968. so in 1986 congress passed ecpa to extend the same protections to cover new forms of communication, in this case digital communications, electronic communications. here we are again almost 30 years later and changes in technology since 1986 have prompted congress to take another look at ecpa to see whether and how it should be modernized to protect the privacy of communications and content that is sent and stored on line in ways that were not possible 30 years ago. as you probably know, several bills have been introduced in congress to reform ecpa to do

just that. so looking forward to our discussion today, i will introduce our three panelists. after the introductions and will explain what each one will start of discussing and then we will get into a more free-flowing discussion. to my left is richard downing, the principal deputy chief of the computer crime and intellectual property section at the justice department. they investigate and prosecute computer crimes and advise the department on issues related to law-enforcement collection of electronic communications and the use of emerging technologies in criminal investigations. it to richards left is james dempsey, the vice-president of public policy at the center for democracy and technology where he focuses on internet privacy, government surveillance, and national security issues. jim is also a former counsel to the house judiciary subcommittee

on constitutional rights. he has been time appear as well. to jim's left is katie mcauliffe, the federal affairs manager at americans for tax reform, and she is also the executive director of digital liberty or she focuses on telecom and technology issues including ecpa reform. so i thought we would start the discussion today with richard you is a terrific person to explain how law-enforcement uses ecpa to obtain information necessary to investigate and prosecute crimes. we will then move to jim and talk about how ecpa was designed for communications technology as it existed in 1986, how that technology has changed since then and wine many argue that those changes have eroded the privacy protections that ecpa currently provides. i will look to katie to talk about some of the different approaches to reform that we see

in some of the bills that have been introduced. >> i want to thank for the invitation to come and speak with you today. very interested to engage in this issue and your questions lighter. what i would like to do to begin with this give you a bit of about experiment. what i will do right now is deputize all of you. you are now the system sheriff's in a small town. you are sitting at the intake desk. in walks a woman who says that her daughter has given her an e-mail that she received the state's basically that some kids that she does not know are going to be coming to her school on a shooting rampage some time soon. your job now as the intake officer is to decide how you will deal with this very serious

situation. and the answer it turns out is that you will need to get a bunch of them permission from providers to figure out what is going on. one thing you would probably want to do is say, well, this e-mail was sent from a particular e-mail account. it was the person long been at the time that this image -- this message was sent? what was the internet protocol address, the ip address of the person's computer as a way of figuring out who that individual is? i would also want to know, what other e-mail accounts has that person in comedic inning with? who else might be involved in the shooting? who else might be supplying information or perhaps the gun for this individual. another thing you might be interested in is the content of other e-mails. how do we know this is a real thing and not a false threat. can we figure out who is involved by looking at the text? can we figure out what it is

that they will be doing? this is a core way that ecpa is involved in criminal investigation because it is a statute that controls the way law enforcement officers obtain information from a provider. if you think for a moment it is hard to think the crime nowadays where this sort of evidence is not going to be relevant and important. so your next week of a job you get a report of a gang shooting in are now interested in knowing who might have been in the area around it, what text messages a potential suspect is sending, the context, can you use the information. the next week on the job you are an undercover officer and download an image of child sexual exploitation that has been applauded by the person who is molesting the child next door when that image came from, how

to figure out who that person is the next week and the job you receive a report that a major retailer has been hacked and stolen 40 million credit card numbers. how you figure out where that came from? where the money went? you can a report of a missing child. run away, kidnapping, that child's phone. the provider may have information. perhaps to say that child. some of these examples, but i want to impress upon you is the bright than the importance of law enforcement investigations. the statute controls the way that law enforcement officers are able to obtain electronic

evidence stored at the provider, not talking about searching homes, what information's stored by verizon or facebook. we are also talking about the broad scope of what is involved here. sometimes it is the content. sometimes what is involved is not content information, the to and from. even perhaps the sell tower nearby where that person is because his phone was being used to communicate through that to our. to be clear we are talking about criminal investigations and civil investigatory matters that the government might be involved with. because when the sec or the department of justice is investigating an environmental matter or a civil rights

violation or various civil fraud matters this is the statute that controls access for those investigations as well. will we are not talking about is whenever the nsa is doing, anything to do with the foreign intelligence surveillance court. those authorities are different. so i just want to make sure we are focused on the right set of issues. does not have anything to do with the nsa alleged bulk collection that has been going on. you are the officer. have you obtained that information? that me give you a couple examples. if with the investigation needs is the name and address on the counter, perhaps you that the i treat -- ip address of the computer that sent the e-mail

and need to find out where that person lives, the name and address, then that is required to be used, a subpoena. and here you could imagine a prosecutor issuing a subpoena on behalf of a grand jury in order to require the disclosure of that information. slightly more sensitive information might be it to and from. now is not just the person's home address but you want to know who the person is sending and receiving e-mail from. requiring the use of a court order. the officer would go to the local prosecutor and present information, present -- convince him it is necessary. the prosecutor would prepare an application, go to the court and present that evidence to justify

the court to issue the subpoena -- excuse me, the court order. so the prosecutor would then take this information, prepare an application, go to the court. the judge would evaluate whether the standard has been met and then if this standard has been at issue the court the order. finally if we are obtaining the content of those e-mails the statute requires we obtained a search warrant similar to the kind that would be used to obtain access to someone's home or business. again, there is an affidavit, a neutral magistrate refused that and evaluates it before issuing. what are want to mention briefly

is, you will notice there are a wide range of different kind. i would caution you, when you hear people refer to the process has a warrant listed conjures up the idea that the officer can walk in and do anything he wants because the warrant list, no warrant required. actually there is a fairly careful and graduated set of rules that are laid out in the statute i would also mention briefly that speaking on behalf of the department we are concerned that we follow the rules and that we carefully weigh the situation with regard to privacy and the privacy invasions that are incurred as the normal course of a criminal investigation. though we are very interested in making sure the balance is correct and interested in making sure that the statute works

properly for the purposes that it is put which is as you can see very critical to public safety, very important in so many different kinds of criminal investigations that we used to help protect the public from violent and other criminals in the course of the work of the department and of law enforcement's. so i am now the deputizing you. you can go back to your regular jobs. >> thank you. thanks to the congressional caucus for putting this on. thank you for moderating. wanted to start by reemphasize in a point that richard made which is that the electronic communications privacy act is separate and distinct from the national security and foreign

intelligence authorities of the government. there has been a lot of debate in the past nine months or so about the in as a, polk telephonic collection among various programs that are conducted under the foreign intelligence surveillance act. we have two parallel sets of rules. we have a comprehensive set of rules for collection of electronic communications in the foreign intelligence and national security arena and a comprehensive set of rules that are different in some ways in the criminal law enforcement and civil. so we are focusing, as richer said, on that criminal-justice and civil enforcement and civil litigation context which is what ecpa, electronic communications privacy act, regulates. ironically in a way that we will

be talking today the standards under ecpa are actually weaker than those under fis8. the president has said and emphasized correctly that in order for the nsa to get access to the e-mail of a person inside the united states the nsa needs to get a warrant from a judge for domestic collection, collection about anyone inside the united states, the nsa needs a warrant. under ecpa -- and this is the problem we are pointing out -- ecpa as it is now written says that government agencies do not need award in the ordinary criminal cases of the kind that richard has talked about and in other non national security cases. if anything -- people often think the national security

standards are more favorable to the government because of unique interest at stake on the national security side, in fact here the privacy protection standards are weaker in the ordinary run-of-the-mill crawl investigations. now, it is hard to -- for many of you to appreciate to my take, how far we have come in technology since 1986 when the electronic communications privacy act was first enacted. in 1986 it was what -- it was a dial up world. he used to dial in through a telephone line to your internet service provider and down load your e-mail on to your laptop at which point that would be deleted from the server.

now, of course, fast forward to 2014 and we are in a world that is characterized by always-on technology, ubiquitous broadband wireless and the emergence of what we call the cloud which is the remote storage of information not on your personal device, not on your laptop, not on your desktop, but with the third-party service provider where it is available the time back top, secure, and available from any number of devices. remarkable, remarkable development which congress did not anticipate in 1986. even the people building the technology did not anticipate in 1986. so the question is, how do we

facilitate law-enforcement investigations and access to all the kinds of information which is critical to a whole range of criminal investigations including very, very serious matters where time is of the essence, how do we facilitate law enforcement access to that information while implementing and enforcing our traditional rights? the constitution, of course, in the fourth amendment protects the right of the people against unreasonable search and seizure in their person, houses, papers, and effects. it is pretty clear that everyone would accept now that digital material is covered by papers in the constitution. the problem that has plagued policymakers, the courts, congress for over 100 years is

what about data that leaves your possession, date that is delivered to a third party for processing. we have seen for more than 100 years and interplay between the courts and the congress in trying to establish rules for how you protect that data. back in the 1870's congress -- i'm sorry, the supreme court ruled that letters, when they leave your position, would you hand them over to the postal service, a government agency, protected by the fourth amendment and the government needs a more and to open postal mail to you in the 1960's the supreme court ruled that the police of your telephone call as it passes over the warriors and through the network of the telephone company is protected

and the government needs a warrant issued by judge in order to intercept a communication in 1986 it was unclear. what about wireless communications? what about non voice communications, data communications? congress adopted ecpa. the quints were moving slowly on this issue. court said we have this technology. we need to create a trust platform for these technologies to succeed. congress adopted ecpa in 1986 and said the voice over the wireless network is protected and requires a warrant for the government to intercept except

in emergency cases which are recognized under the fourth amendment. and dated, not voice communication, carper said, is protected as it moves through the network of the then just emerging internet. what congress did not really anticipate, as i said, was what about data at rest? what about communications when they are stored not locally where we would all agree they are protected, but remotely. that is returned destructible and came up with a complicated set of rules the bottom line of which is end of data content, just like letters, e-mail, telephone calls, voice, text, documents, stored with a third party, congress said in ecpa

they should not be protected. they should be available to the government with a subpoena issued by a prosecutor or in some cases by the fbi or t a with no judicial approval or finding of probable cause. and obviously technology has moved way beyond that. we believe it is time to update ecpa to say that a warrant is necessary for the government to compel a third-party service provider to disclose that content, again except in emergency cases with the consent of the customer and the other exceptions you would normally have to the fourth amendment. in 2010 my organization, the center for democracy and technology, put together a coalition of companies, trade

associations, and public-interest groups called digital to process. we launched with 30 members and now have over 100 members. i have a sheet outside that lists all of the current members and lists the principles for ecpa reform based on top proposition that the government should have access to data using a variety of instruments including the subpoena for the last -- for the not content data. but ticket the accountant whether it is a telephone call, letter in the postal service, and e-mail in transit, a text in storage, a document stored with any of the on-line services, the government should meet that constitutional standard. one federal circuit court of appeals has ruled that ecpa is

unconstitutional precisely because it does not require a war and for access to us toward content. our proposal would cure that constitutional defect and put ecpa back on a sound constitutional basis. the pending bill in the house is har1852 introduced by representative yoder and paul lewis and now has 200 co-sponsors. i will turn it over to katie mcauliffe, one of the charter members of our digital to process coalition to talk a little bit more about the pending legislation. then i think we will probably come back for a second round to some of the issues at stake. we can also talk a little bit later about things other than content, for example, cell phone tracking data which is also

covered somehow might ecpa, although congress did not anticipate cell phone tracking were fully anticipate with a wireless industry was going to never anticipated how ubiquitous it would be. ecpa covers tracking data but does not require a warrant which is another one where we think there should be a warrant. let me yield to katie mcauliffe. >> katie mcauliffe, americans for tax reform and digital liberty. what to think richard and jim for that great background on electronic -- electronic medication privacy. i will probably reiterate a few things that they have said.

so when talking about this, a bunch of different aspects to ecpa, warrant for content, location tracking via cell phone , trap and trace. and we have these principles. the one we want to focus on right now is warrant for content . jim was describing content held in your e-mail and a third party service provider and accountant that is held in the crowd, by facebook, that is in your global document, and one of the things that is really interesting is that on my phone here depending on the white button i hit determines how that the information is protected. if i save a photo to buy phone storage it has warrant protection.

if i say the photo to my cloud it does not. that is a strange difference and is something to think about, papers that are in your file cabinet at home have warrant protection, but papers that you say have been kugel boxes not. as mentioned, bunch of different things that go in to this topic. i want to start out with topic -- turkey run some of the bills that are round. a bill that is fully focused on location tracking, a great bill, comprehensive, definitely something to keep an eye on moving forward. a very complicated issue. constant is the first up and

getting an education on how this kind of information affects our lives and privacy. a bill and the house if you're not on the po you should take a look at it. it has great information it mirrors the bill that is in the senate these are similar. it lays out that your e-mail and stuff stored in a third party should not be treated differently than stuff stored in a file cabinet in your house. a warrant should go to the service provider as well. you can subpoena me you need a warrant to go to a third party. so that would clear that up and let me ask the user have control

over my data to decide what has privilege and what does not. privilege many -- i am not trying to share my doctor's note or love letters in an investigation, but anything relevant to the case -- like say i did something fraudulent or something was wrong with my lobbying, that is the kind of stuff that would have to be turned over. being able to decide that privilege is important. there is another bill that combines both of these, location aspect and a warrant for content which is sponsored by two representatives. a good comprehensive overlook, what i want to focus on and think has the most steam and really shows that americans -- shows what americans want to see from congress is that they care about privacy. again, this is separate from the nsa, not a lot of foreign

intelligence but about domestic investigation. it is important work well. it is important that companies are able to comply in a way that is consistent. by having a warrant we don't have to worry that they're breaking a contract with their users and make sure they're getting the police or agency investigating everything but they need. that is all very clear. some of the examples that richard gave, things like child pornography or someone with an e-mail that is talking about a plan, those kinds of things are -- there are emergency exceptions. those things can begun to not necessarily getting a warrant after warrants. in the instance of gang violence, that would be a

criminal investigation. and there are actually a lot of voluntary agreements out there for sharing information, and i am quite sure that target was more than willing to share information which is why a lot of retailers have joined in groups that are data sharing of possible threats to security which is something that they have not done in the past. so one of the things that comes up, we talk to a criminal. these are criminal investigations. you need a warrant. know who sent what to whom at what time. you can get that with the subpoena. on the civil side a case in the

ninth circuit, they were in civil investigations which have a lower burden of proof, using a subpoena to yet similar information that you might have to use a warrant for a criminal law investigation. that is -- it is kind of a break, if you think about it. so one of the things that has come up this civil investigative agencies have said, make these updates to a ecpa and civil regulatory agencies like the sec , consumer financial protection bureau, epa, fcc, sec, osha, everybody has the ability to -- they would not

have that ability anymore. they have kind of asked for some kind of change or an amendment to give them some kind of warren authority. this is very interesting because they're is a lower standard of proof. able to do the investigations if an amendment or added to the already written legislation, the other thing is they share with criminal agencies. the criminal agency would have had to get a warrant to do this particular work, but the civil investigative agency does not have to, and they share that information. in that way you are circumventing the legal structure put in place to protect our fourth amendment right. it is very important that -- because that ensures protection of the fourth amendment right and also still insures that law

enforcement can do their jobs. when the civil investigations, they can issue preservation orders to third-party service providers and subpoena me because the question is what if she dumps her e-mails that we need for this investigation? does not matter because it but the preservation order with the third-party service provider that can compare what i have given them to the major data with the service provider and say we know that you have been talking. this is a colleague or someone who, you know, we know you have any criminal or civil violation relationship with. we want to see this e-mail. the thing is, that is so much work to go through all of the paper and it is so hard and so tedious. the fourth amendment is such a bummer.