"When we request these records, it is for a reason -- we believe that the records constitute evidence that will lead to identification of sexual predators, the recovery of kidnapping victims, or the successful prosecution of a murderer," Littlehale said. "Any consideration of changes to ECPA that will make obtaining communications records more time-consuming and laborious should reflect an understanding of how those changes will impact our ability to do our job."
During the hearing, Representative Louie Gohmert, a Texas Republican, questioned why Google was pushing for email privacy protections when it shares information about Gmail users with advertisers. Gohmert asked whether U.S. law investigators could get "the same deal" as advertisers who send targeted ads to Gmail users based on keywords.
The automated keyword advertising process isn't the same as a company turning over a subscriber's account information to police, said Richard Salgado, director of law enforcement and information security at Google.
On the same day as the hearing, two senators introduced an ECPA reform bill. Senators Patrick Leahy, a Vermont Democrat, and Mike Lee, a Utah Republican, introduced the Electronic Communications Privacy Act Amendments Act, which would require law enforcement agencies to get search warrants for stored electronic communications.
Twenty-seven years ago, "no one could have imagined just how the Internet and mobile technologies would transform how we communicate and exchange information today," Leahy said in a statement. "Privacy laws written in an analog era are no longer suited for privacy threats we face in a digital world."
Leahy's statement was echoed by several members of the House subcommittee, and even Elana Tyrangiel, acting assistant attorney general in the DOJ's Office of Legal Policy. While DOJ officials have been reluctant in the past to embrace ECPA reform, Tyrangiel said some of the legal distinctions in electronic surveillance law "have failed to keep up with the development of technology, and the ways in which individuals and companies use, and increasingly rely on, electronic and stored communications."
In general, law enforcement agencies should get search warrants before obtaining any email, she said. "There is no principled basis to treat email less than 180 days old differently than email more than 180 days old," Tyrangiel added.
Still, there should be some exceptions, particularly when lives are at stake, she said. In civil cases filed by U.S. agencies, subpoenas for business records may still be appropriate, she added.