SEC Division of Enforcement Director Wants Easy Access to ISP Email Content

In testimony before the U.S. Senate Committee on the Judiciary, SEC Division of Enforcement Director Andrew Ceresney called for pending amendments (S. 356) to the Electronic Communications Privacy Act (ECPA) to offer stronger privacy protections and observe constitutional boundaries without frustrating the legitimate ends of civil law enforcement.

The proposed amendments would require government entities to procure criminal warrants when seeking out the content of emails and other electronic communications from Internet Service Providers (ISPs). Mr. Ceresney explained that because the SEC and other civil law enforcement agencies cannot obtain criminal warrants, they effectively would not be able to gather critical evidence directly from an ISP. Mr. Ceresney expressed concern that depriving the SEC of the authority to access ISP's email content would also incentivize subpoena recipients to be less forthcoming in responding to investigatory requests. Mr. Ceresney asserted that, as currently drafted, S. 356 would create an unprecedented digital shelter . . . that would enable wrongdoers to conceal an entire category of evidence from the SEC and civil law enforcement.

Mr. Ceresney also said that in order to obtain an appropriate balance between privacy and significant law enforcement interests, S. 356 amendments should:

• Afford a party whose information is sought from an ISP in a civil investigation the opportunity to participate in judicial proceedings before the ISP is compelled to produce the information;
• Include language that would (i) require civil law enforcement agencies to attempt to seek electronic communications directly from a subscriber before seeking them from an ISP and (ii) give the subscriber the opportunity to challenge the request in a judicial proceeding when seeking electronic communications from the ISP becomes necessary.