in portland, oregon. many of these authors have or will be appearing on booktv. watch them on our web site, booktv.org. >> you're watching booktv on c-span2 with top nonfiction books and authors every weekend. booktv, television for serious readers. >> next, on that "the communica" congressional proposals to protect electronic privacy. then, radio show host amy goodman discusses politics and the 2016 campaign. and live at nine a.m. deputy national security adviser ben rhodes speaks at a meeting for the arms control association. >> host: and this week on "the communicators," a discussion about the electronic communications privacy act. neema singh guliani is with the american civil liberties union. what is ecpa or the electronic

communications privacy act? >> guest: ecpa is, quite simply, in today's world the average american expects that the e-mail they send to their loved one is going to have the same constitutional protections as the love letter they may have put in their desk. but unfortunately, our laws that govern when police can access digital content haven't been updated since 1986. in the interim, there have been courts that have said police have to get a warrant before they get things like e-mails or private facebook messages. what this would do is, essentially, put that protection into the law. that's consistent with the policy adopted by the fbi. it's similar to what google, microsoft and other major providers already require. but what it does is put that requirement into the law, eliminating any ambiguity about the protections that should apply to people's private, sensitive digital information. >> host: now, what's the legislative discuss of an update to ecpa right now? >> guest: you know, right now

the house has passed a bill 419-0. so it's been supported by republicans -- >> host: and what does that bill do? >> guest: that bill would put in place the warrant requirement and basically say anytime police want to get your e-mails, other types of digital content, they have to come to providers with a warrant. and it's got unanimous support in the house. it's backed by right-leaning groups, left-leaning groups, companies. it has support that's hard to get for, frankly, name ago post office. but right now that bill is sitting in the senate, and we're waiting for it to move and to pass and become law. >> host: why is it sitting in the senate, do you know? >> guest: right now it's slated to be taken up by the senate judiciary committee next week, and there have been a host of amendments proposed. many of these amendments are unnecessary, many are controversial. but the hope is that this bill moves cleanly given the broad base of support not only in the house, but in the public at large who very much want to feel

that their rights are protected in the digital age. >> host: well, also joining us is bryan porter. bryan porter is a commonwealth attorney or state attorney in the commonwealth of virginia. mr. porter, what do you think about the legislative efforts to update the electronic communications privacy act? >> guest: well, interestingly enough, i don't really think that i'm too far apart from ms. guliani's positions that she just stated a few minutes ago. actually, in virginia we've been proactive with making sure warrants are obtained when we're trying to get people's electronic communications, particularly e-mails. i know over the course of my 15 years as a prosecutor on a number of occasions i've obtained e-mails, but every single time we've used a search warrant in an effort to obtain that. i think what is important from what was said was that what needs to happen is that ecpa, when it's amended, needs to give the same protection to someone's

love letter as they would also have if that was written electronically, not additional protection. and from the investigative and law enforcement field, that is really what our main concern is, is to make sure that electronic communications are provided with the same level of protection, not an extra level of protection beyond what you would expect in your home or in your bank accounts. >> host: well, what is the legislative effort to add an extra layer, as you call it? >> guest: well, one of the things that concerns us about ecpa as it's currently written in the revised position before the senate, is it does not allow for the traditional exceptions to the search warrant requirement that are often used by law enforcement, for instance, in a critical missing person case or where someone's actual personal, physical safety might be in danger. in other words, there are very limited circumstances that a police officer or a federal agent might be able to access somebody's written documents, access their home, their car without a search warrant in an emergency situation. and our position is currently as

written those exceptions are not actually contemplated by the current version of ecpa. so it's one of our main areas of concern. one other area of concern for us in the investigative field in the law enforcement arena is the fact that there really isn't any industry-wide standards for providers. in other words, i can tell you from personal experience it's a much different experience dealing with facebook, for example, than google in relation to the amount of information we get back, the rapidity in which it's actually given to us and the kinds of obstacles we face when dealing with these different providers. so one of the things we'd also liking to see is that the ecpa, when it is amended and enacted, would give us some kind of standards for the providers to follow so that we have some determination as to when this information's going to be given to us and under what circumstances it might be given. before we introduce our guest reporter, neema singh guliani, what did you hear from mr. porter? >> guest: i think the issues are

addressed in the legislation. it's not providing more protection to your e-mail than a love letter, it's providing the equivalent protection and the protection that the constitution requires. in response to sort of concerns about emergencies, you know, right now the existing standard is that if police have an emergency, they can go to provider and say i've got an emergency, i need information, and providers routinely respond to those requests. many providers now have teams on call 24 hours a day, in fact, to respond to those requests. the legislation that's pending preserves that existing infrastructure. and importantly, it does one of the things that we heard that is important, which is sets standards what all providers, large and small, would follow. must follow. and importantly, it clarifies that a warrant is the right process, it is the right standard that must be met. so it's really a step forward in terms of creating clear standards that companies can follow and that law enforcement and prosecutors can expect. >> host: mr. porter? >> guest: well, i guess we have some misunderstanding or perhaps disagreement about exactly what

is contemplated by ecpa. it's going through an amendment process, and perhaps the end result might address some of our concerns. but these are areas where i think as law enforcement officers we sometimes are seen as being resistant to the idea of having warrants for this type of information. i don't think that's accurate, at least not from my standpoint. i think i've been very forward-thinking. i think ndaa, the national district attorneys' association, has been forward-thinking in accepting in almost every circumstance a warrant based on probable cause is the way to go. but this is a huge change. it's a very complicated bill, and we're asking that the senate give due diligence and go through it and understand not just civil liberties arguments, but also the arguments of law enforcement. we don't use this type of information, at least at the state level, to investigate pet the city crimes. we use the information that we obtain from these types of records in combating multistate drug trafficking organizations, human trafficking organizations.

i know i've done that a couple of times just in the city of alexandria over the past couple of years, and homicides as well. so you do have real, serious concerns here about both the level of crime and the safety of human beings at issue. we want to make sure those concerns are adequately addressed by the amended legislation. >> host: well, joining our conversation is amir nasr of the morning consult. he coffers technology for that publication. >> thank you for having me. a question that your answer kind of brought to mind. in the senate now, the judiciary committee postponed their vote last week to address some concerns that, of many. senator john cornyn had proposed a couple of amendments, one of them was to kind of help counterterrorism operations and the other is actually what you were talking about, dealing with emergency situations. i'm curious from both of you kind of what your thoughts are on those amendments. for you, whether they fix the legislation, and for you whether that kind of, you know,

undermines it excessively. >> guest: well, i'd have to see the final version in order to be able to accurately answer your question. all we're asking is that the amendment that's finally adopted, if there is one that's adopted, just basically encompass the current exigent circumstance exceptions to the search warrant requirement and basically codify that in ecpa. so i'm talking about true emergencies here, situations in which a person maybe with alzheimer's is missing, and the police need to locate this person immediately because they might be in physical danger, don't have time necessarily to obtain a search warrant and, obviously, we don't want anyone to be harmed because of an hours-long rate in -- wait in or to get a search warrant from a magistrate. talking about that, underage people who might be at arm or under risk of harm and the need to find seriously dangerous felons in a short period of time if we have some basic information about where they might be. >> guest: yeah. i mean, i think you raise some great points. i think the first question to

ask is, you know, on a bill that passed 419-0, why are we talking about additional amendments when there's such a broad base of support? with regards to the two amendments senator cornyn raised, they both raise a host of civil liberties and privacy concerns. one of them would dramatically expand the surveillance authority of the fbi and allow them to -- with just a subpoena and without a court order -- get information about individuals' browsing history, what web sites they might visit, information about the to and from of e-mails they may send, location information that might be associated with someone's ip address. i think the average american would be very concerned to know that the fbi could get that information without going to court, particularly given the history of abuse we've seen with these types of subpoenas. for example, you know, the inspector general has noted that these types of national security letters as they're called have been abused in the past and have been used in circumstances they shouldn't have been used. given the controversy, given the concerns with this amendment,

this is just not the bill to put that amendment on, and it's something that should be subject to robust debate, and i'm confident that after that debate members of congress will say, well, this is a problem. the second amendment that senator cornyn put forward would have required that providers, companies like google and microsoft, respond to emergency requests even in cases where they felt that no emergency existed. even if they had evidence that a law enforcement official was trying to abuse this type of exception. and what we've seen in the past is removing the ability of providers to resist requests that they deem as improper is a real problem. because there has been abuse of these exceptions in the past. is so, for example, in 2010 the department of justice's inspector general examined use of these so-called emergency exceptions in a national security on context, and they fd there had been abuse. there were cases where requests were put in in circumstances

that weren't truly exigent. and it's a problem when you're removing the protections against those types of requests and there are no protections to insure if there is abuse, that information isn't used in a civil case, isn't used in a criminal case, that someone has the ability to say, you know what? no emergency existed. my rights have been violated, here's the redress i would like. >> barring the civil liberties concerns, is it concerning for tech and privacy advocates that senator cornyn is, obviously, very powerful in the senate, but he's also a co-sponsor. does that, you know, make civil liberties advocates going wary to a potential committee or full senate vote on the underlying bill? >> guest: you know, senator cornyn is a co-sponsor of the legislation, and i'm confident a path forward exists. i think that these particular amendments that have been put forward are concerning. i think that the senator and other members of congress have heard those concerns and. and really i go back to the

house vote. it's really a no-brainer for the senate to take it up and pass. it's rare that you see a piece of legislation that has such a broad base of support by individuals and groups across the political spectrum and for which industry also say is desperately needed and is supportive of. >> mr. porter, so the house bill that she's talking about, 419-0, underwent a few changes in committee that many privacy advocates weren't, you know, enthralled about. but, you know, they were okay with it moving forward, you know, they took out a notification requirement, congress' subpoena powers were maintained. i'm curious from law enforcement's standpoint how do you feel about that bill that ended up passing? was that still insufficient in terms of your concerns? >> well, i think it's a very good question. i think, again, law enforcement's perspective is law that surrounds obtaining electronic records -- and, by the way, almost every major

investigation in today's age can utilize electronic ed as part of the information -- evidence as part of the information, the prosecution of serious criminals. those types of entities, providers that maintain and collect this type of electronic evidence, they need to be subject to the same rules as the banking industry or a storage facility that has physical objects of evidence. in other words, there shouldn't be additional protections beyond what the constitution requires for this particular class of evidence. now, it's very difficult because in most cases when you're talking about physical objects, it's just a human being or perhaps a company that pezs these -- possesses these to objects. here we have the intervening layer of having providers involved in it. and, for instance, the point that was made a few minutes ago about having providers being given the opportunity to basically reject a process that's been issued for records, that's difficult from a law

enforcement perspective because these providers have business concerns at their heart. they're not worried about whether or not the investigation's going to go well or whether it's not even actually a serious criminal might be prosecuted with the evidence. they're worried about selling their product and making sure that their client base is happy with the protections, and i think it's good business for them to be seen fighting the good fight, if you will. it's a real problem for us. and with regards to the notification requirement, that's far beyond what's required of any other type of search warrant. a search warrant for minute's residence, you can get a search warrant for somebody's bank vault, their safety deposit box. there's no notification requirement at that point. obviously, in most cases the search warrant's public record. defendant might very well get ahold of that. their defense attorney's going to be provided a copy of the search warrant, but the idea we might have to tell a child pornographer or a human trafficker or a member of a criminal street gang that they're being investigated before we're ready to actually bring charges puts a chilling

effect on all of law enforcement nationwide. those were our concerns with that bill. i'm glad they were addressed in the be amendment process. >> host: the fourth amendment of the constitution reads the right of the people to be secure in this their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated, and no warrant shall issue but upon probable cause. and particularly describing the place to be searched and the persons or things to be seized. should that apply uniformly to electronic communications, mr. porter? >> guest: i absolutely agree that it should, but i would make a couple of points about the forth amendment. first of all, it's very limited in what it actually says. so a search must be republican, okay? so -- reasonable, okay? so that doesn't mean every search ever conducted has to be done pursuant to a warrant. that's not what the text says. it has to be reasonable or,tively, not unreasonable. so in some circumstances like we were talking about earlier, perhaps a dangerous felon who

needs to be caught before they can do any more harm to the citizenry, in those types of emergency circumstances it is actually reasonable to conduct the search without a warrant. so i agree with my counterpart here in almost all circumstances, in the vast majority of circumstances when we have the ability to resort to legal process, obviously, that's the way it should be done. but a reasonable search in some circumstances could be done warrantlessly in emergency situations, and that's the law for a bank vault, a safety deposit box, somebody's home, and we would argue also should be the exact standard for -- >> host: neema singh guliani. >> guest: yeah, i just want to jump in, this isn't in the bill, but the right to be notified when the government is requesting your information is a cornerstone of the fourth amendment. what that means is you can go to court and say i'd like for return of my information. you can check government surveillance or government searches that are unlawful and improper. and historically, just as a

practical matter, you know, when you had a love letter stored in your desk, you knew when police went to get that letter because they had to enter onto your property and request permission into your house or force their way boo your house. the fact this bill doesn't include a notification requirement, doesn't require application to notify you either immediately or in cases where it might jeopardize an investigation means that as a practical matter if police get a decade's worth of your gmail and you're never charged with a crime, you may never know so that you can go to court and get redress. and that is a huge emission. it's not in this bill, but that is something congress will have to deal with in this future, and that is a protection that should be included in legislation. >> on the note of notification, i mean, i think it's interesting because now you have microsoft suing the u.s. government for their frequent use of gag orders, kind of barring them from notifying individuals when

their e-mails, messages have been seized. how do you think, i mean, they're only one of many tech companies that have gotten involved or tech trade groups that have said, you know, we want a change to this. how do you think that contributes to the whole discussion considering that, like you said earlier, they're kind of the gatekeepers of the information? they're the ones who have it? >> guest: well, i this i it goes back to -- i think it goes back to my earlier point. the providers are seeing it through the prism of good business practices; wanting to make their customers happen. encryption's part of that discussion, good security for their accounts, obviously, very important to people. and i don't think there's anything wrong with that. i mean, i think that's to be expected. it's an unusual circumstance where so much really relevant information is in the hands of third parties. and i think we've actually been more forward-thinking than we're sometimes given credit for in the law enforcement field. there's a very clear argument to be made that there is no fourth amendment protection when people give their information to a third party provider like an

e-mail or cell phone provider. i'm not making that argument here because i agree that the law needs to change and alter going forward as communications and privacy concerns change over the years. but you've got to start with that issue. now, it was brought up that when you had a love letter and the police would come in your house and, therefore, they would know they'd taken your love letter. well, it could have happened that you kept your love letter in a safety deposit box, and the police got it when you weren't looking. the point is, there is no notification requirement. a person is ultimately charged with an offense, you wish to use that evidence against them, obviously, they're going to get a copy of the search warrant and have an ability to fight that in court. but if you're talking about just hypothetically a child pornographer, sometimes it can take a year, maybe 18 months to get that investigation all the way through. if the provisions for notification had gone through as they were written in the original bill, as soon as a search warrant is obtained, that six months or whatever time period that was in the bill

starts to tick immediately. and at the end of six months if we're not ready to charge, we've got to notify the person. the obvious import of that is that the evidence is going to be destroyed. so that's a real concern. and, again, what we're asking for is the same type of protections given to people's homes, their other objects, other effects to be adopted in the electronic world. >> guest: if i could just, you know, respond to one of those points. there's this issue raised, won't notice interfere with the ability of law enforcement to do their job. let's say they have a sensitive investigation. the provisions in the bill would have allowed law enforcement to go to court and say, look, notifying the individual would jeopardize the investigation. we would prevent the provider and delay notification on the part of the government. and those orders could be renewed. so if the investigation took a year, that notification wouldn't be provided until the investigation was completed and

there would be no concern about tampering with it or the evidence. and so the existing notification provision allowed the government to meet its obligation to provide notice. that obligation that has been acknowledged in court decisions, that obligation that has historically just been something that law enforcement could not evade their duty. but it also accommodates law enforcement's legitimate needs and insures that that type of notification doesn't infear with the ability to conduct -- interfere with the ability to conduct an investigation that's extremely sensitive. >> guest: well, my understanding was at some point the bill actually encompassed the ability to delay notification, but only for a total of six months. if there's a conversation to be had about, you know, the ability to prove to a court that maintaining the secrecy of the investigation ongoing and that can be updated on a periodic business, it's a conversation we might be willing to have. but the point is, is that that is not required of any other type of search warrant with. if i have a search warrant for somebody's home, if i can

execute the search warrant, get in and get out without them being -- knowing that we've invaded their home and done the search inside of their home, there's no notification requirement in the code that makes us have any obligation to call this person and tell them that we had a search warrant and that we executed it at their residence. i would also point out that, again, notification provisions and also -- and having the right to refuse process because they don't think that a true emergency exists, those are the types of protections that could be given and abused by the providers in this case to try to throw up roadblocks to law enforcement. we're very concerned about those. >> well, as we're having this conversation, this bill is slowly but surely going through congress. there's also been the revelation that the senate intelligence authorization bill that has a provision buried within it where it allows the fbi to read e-mails through -- without necessarily obtaining a warrant. and i'm just interested, because they're literally simultaneously

going through, they're sitting in, you know, respective -- in the senate. how do you think this conversation advances moving forward? because it shows that, you know, it's not other -- over with just this one bill. the policy conversation is clearly evolving all the time. so how do you think regardless of what happens with this bill, this whole conversation, how does it move forward? >> guest: please. >> guest: yeah. i mean, i think that the larger question of how does congress update the laws to insure the people's information is protected now that we have all these methods of communication very much beginning. i think that what we saw when you referenced, for example, the senate intel authorization bill and provisions buried deep in that in a closed mark up session where the public didn't have access, i think that is very concerning. what we've heard, we haven't seen text of that legislation yet, is that it would allow the fbi to get very, very sensitive information without going through a court. you know, the average american

would be concerned if the government knew what web sites they visited, whether they went to web sites to get, you know, assistance with a mental health disorder, whether they googled the number of a suicide hotline, whether they sought help for domestic violence or for a medical condition x. americans increasingly find this information very sensitive, and they expect that it will be treated with the same protections as, you know, historical information, their address book that they once kept in a desk drawer. and, you know, the concerns you heard expressed by member of congress who sit on the senate intelligence committee, the concerns you heard expressed from the public at large, i think, will continue and are strong indication that, you know, those are areas where we need to have more protection, not less. >> guest: i think it's a very good question, and i think the first thing that i would tell you is i'm very pleased as a law enforcement official to see congress taking this up and debating it. how does it go forward, how do we move forward with this. first of all, i think the

legislature -- particularly congress, not the state legislatures -- really needs to take ahold of this situation, update ecpa and continuously over the years look at it. give you a couple reasons for that. first of all, the providers are scattered all around the country. so, for instance, i'm based in virginia. but on a regular basis, we request records from google, from facebook, from twitter. and that, of course, requires us to serve process -- tate process, not federal process -- all the way across the entire country to california. so this is an area where congress, obviously, has to take the lead and preempt the field, if you will, and make sure there are standards industry wide that explain the process that needs to be issued to get these records and the requirements for responding to them. furthermore, i think congress is really the moving force on this because the courts are not best suited to deal with this. what i mean by that is courts are retrospective. they look backwards on things. by the time a court takes up on appeal a very complicated trial

matter, it could with years after the -- it could be years after the technology's already evolved before they get to address that issue. a good example yesterday is the fourth circuit issuing an opinion in which they, en banc, issued an opinion on cell phone data. i'm still contemplating whether we will be seeking search warrants for that, but the point i'm trying to make is if you read the fourth circuit's decision, they're clearly crying out for congress to take the lead. even the majority opinion they say, look, we're not really well suited for this. congress needs to get involved in this because they're forward-thinking, and they have a better ability to kind of address this as a holistic whole, if you will. and the final point of that is people like myself, people like ms. guliani talking about this. we're not enemies. i think people might be surprised i have a much more, i think, forward-looking view on the warrant requirement than

most people would assume a law enforcement official would have. however, i do have concerns about the investigative process, and the only way i'm going to be able to understand her position, she's going to be able to understand my mine is for us to discuss stuff and try to work it out through the process. >> host: well, neema singh guliani, what is your selling point to law enforcement officials? >> guest: you know, i think we're in agreement. this is an issue that congress needs to take on, you know? we should not be operating under laws from 1986 to determine how law enforcement gets whether it's location information or whether it's e-mails. and i think that what you're hearing is that, you know, we're really not far apart, and i think the bill that came out of the house represents the considerations of, you know, private advocates, law enforcement officials, members of congress on both sides of the aisle. and that's why you see unanimous vote, that's why you've seen the support. and i think it's really important to mention at a tate level you're already seeing these -- state level you're

already seeing these put into place. as a matter or law or policy, state prosecutors and state law enforcement officials are already following these rules. you know, given that i think it's time for congress to take a lead on this issue, pass legislation that, you know, seems for all intents and purposes like a no-brainer and legislation that really is needed to provide consistency among all states and among all law enforcement officials and companies. >> host: bryan porter, what is your reassurance to those concerned with civil liberties? >> guest: well, i think one of the things i would say with regards to that is like members of congress or tate assemblies -- state assemblies, state delegates, state prosecutors at least are elected, and that means i am beholden to the people. and that is true in the city of alexandria. if i'm engaging in practices that do not meet the approval of the citizenry, you know, i've got to run for re-election next year. you've got that. you've also got the fact that i have found in my field we are

not, we're not anti-civil liberty. we ask for some balance so that we have the investigative tools that are necessary to put murderers and drug traffickers and child pornographers away so theyment can harm society, but we are forward-thinking. i know years before the gps tracking requirement came out for a search warrant for putting a tracker on a vehicle, i myself was advising the police departments that i deal with and also other state prosecutors at the state level that they needed to get a search warrant before the case came out. same thing for maybe increasing the standard of probable cause instead of relying on a lesser standard for phone orders with regards to getting people's historical or realtime location data. ..

>> this isn't "the communicators" on c-span. >> today a discussion on the nuclear challenges racing the global community. among the speakers deputy national security advisor ben rhodes. our live coverage begins at 9 a.m. eastern here on c-span2. now, amy goodman host and executive producer of the democracy now! radio show talks about politics, the presidential election, climate change and the media. this was part of the annual left forum convention in may. this is about 30 minutes.

>> thank you, thank you. well, it's a really great honor to be here and to be back in new york. we are on a 100 city tour for the 20th anniversary for democracy now!. i also want to shout out to my colleagues over there in the back, and the volunteers and interns who are helping out. democracy now! is a joint effort, a joint project, a brain trust of remarkable group of reporters and producers and videographers for the last 20 years. we never thought it was going to go beyond nine months. it was the only data election