DARRYL NIRENBERG
Partner
JASON ABEL
Of Counsel
EVA RIGAMONTI
Associate
Steptoe & Johnson LLP

Overview

It has been a very busy spring on Capitol Hill for lawmakers and PORAC. PORAC members visited Washington, D.C., during the week of April 11 to discuss important law enforcement-related issues with members of Congress. PORAC met with over 30 different offices, including having discussions with Senators Barbara Boxer (D-Calif.), Dianne Feinstein (D-Calif.) and Dean Heller (R-Nev.), and with members of their House delegations. PORAC also met with staff members in the Department of Education’s Office of Student Health and Safety, and the House Ways and Means Committee.

Throughout those meetings, PORAC advocated on behalf of law enforcement by engaging lawmakers on essential federal grant programs and explaining its position on selected pieces of legislation that would impact PORAC members and the broader law enforcement community.

Federal Grant Programs

PORAC members advocated for sustained and expanded funding for the following federal grant programs, giving real-world examples of how these grants provide vital support for law enforcement priorities in their communities.

• Byrne Justice Assistance Grants (Byrne JAG) support law enforcement and important programming in local communities, including crime victim and witness initiatives, crime prevention and education, corrections, and drug treatment and enforcement programs.
• Community Oriented Policing Services (COPS) grants are essential for the technical training of law enforcement officers and the development of policing strategies.
• High Intensity Drug Trafficking Areas (HIDTA) programs provide important assistance to law enforcement in critical drug-trafficking zones that helps law enforcement maximize resources and participate in efficient information sharing.
• Body-Worn Camera Implementation Program grants aim to expand the use of body cameras and explore their impact at the state and local level.

Privacy Legislation

PORAC’s delegation arrived on Capitol Hill, with legislation to update the Electronic Communications Privacy Act of 1986 (ECPA) on the front burner. While PORAC made its rounds on Capitol Hill, the House Judiciary Committee considered the Email Privacy Act (H.R. 699), legislation that would require the government to obtain a warrant to compel service providers to hand over the contents of user emails, text messages, social media posts and other electronic communications. Today, in contrast, ECPA allows law enforcement and other agencies to use subpoenas to obtain emails older than 180 days, which are considered “abandoned” under the law. (Different from search warrants that target specific items and must be issued by a judge, subpoenas have a broader scope and can be issued without judicial authority.)

PORAC expressed its support for updating the ECPA, but raised red flags about certain provisions in the legislation that merit review and revision to protect law enforcement’s ability to fulfill its responsibilities. For example, the legislation problematically would provide significantly more protection for stored electronic communications than would be provided to evidence in the physical world.

PORAC explained that the warrant requirements established in H.R. 699 would not distinguish between publicly disclosed digital content that has no expectation of privacy and digital content that has an expectation of privacy. Just as police would not need a warrant to search and seize physical evidence that is in “plain view,” police should not be required to obtain a warrant to obtain digital data that is posted online in plain view, such as a posting on Craigslist or Twitter.

PORAC also expressed concern that H.R. 699 does not include provisions for historically recognized warrant exceptions. Today, if law enforcement has 1) permission from an individual to search or seize data or 2) needs to search or seize data to address an exigent circumstance or an emergency (such as an active kidnapping or terrorist situation), Fourth Amendment jurisprudence allows law enforcement to obtain that information without a warrant.

PORAC impressed upon lawmakers the need for these same warrant exceptions to apply in the digital space. This is particularly important because the bill fails to acknowledge that police are currently at the mercy of third-party service providers when it comes to obtaining content during a crisis or other exigent circumstance — and these service providers are often resistant or even unresponsive to warrants and other legal documents issued by law enforcement.

PORAC emphasized that it would not support H.R. 699 in its current form, but would consider supporting the legislation if the concerns outlined above were addressed and fixed. PORAC was pleased to see that on April 13, during the House Judiciary Committee’s markup of H.R. 699 — the process by which a committee amends and rewrites proposed legislation — Chairman Bob Goodlatte (R-Va.) proposed a revised version of the legislation that addressed one of PORAC’s concerns. While the legislation did not address the emergency exceptions discussed above, the substitute bill removed a provision, which PORAC opposed, that would have required law enforcement to notify any individuals targeted by an ECPA warrant after the police had received copies of the person’s digital content. PORAC was worried that such an unprecedented requirement could place an investigation at risk, as the suspect would likely try to destroy the evidence.

Chairman Goodlatte’s substitute amendment to H.R. 699 passed unanimously out of committee on a 28-0 vote. The bill, as modified, now awaits consideration by the full House. PORAC will continue to educate members about problems with CalECPA — similar legislation that was enacted in California in the fall of 2015 — and work to fix the legislation before it comes to a vote.

The Opioid Epidemic

In recent years, the prevalence of opioid abuse and heroin use has risen dramatically in many parts of the country. In California, deaths involving opioid prescription medications have increased 16.5% since 2006. PORAC vividly shared the real-world implications of this trend, and stressed the need to fully fund community policing efforts and social services to seal our nation’s borders to prevent the entry of illegal drugs from abroad, and to enact legislation to ensure that opioids are being prescribed in a safe and responsible manner.

PORAC has been monitoring several bills that have been introduced in both chambers to address the issue. In February, the Senate passed the Comprehensive Addiction and Recovery Act (CARA) (S. 524) with 43 bipartisan cosponsors, including Senator Dianne Feinstein (D-Calif.). CARA would expand the availability of naloxone, a medication used to treat heroin overdoses, to law enforcement agencies and other first responders, among other provisions that address addiction. At the time this issue went to print, the House Judiciary Committee was expected to mark up CARA at the end of April to allow for consideration by the full House in May.

Many members of Congress facing tough races this fall, including Senator Kelly Ayotte (R-N.H.), represent states that have been hit especially hard by this scourge. PORAC expressed its support for Senator Ayotte’s Stop Trafficking in Fentanyl Act (S. 2027), which would modify the drug quantity thresholds that trigger a mandatory minimum prison term for a defendant who manufactures, distributes or possesses with the intent to distribute fentanyl, a powerful synthetic opiate. Representative Stephen Knight (R-Calif.) is a cosponsor of the House version of this bill (H.R. 4183).

In a congressional environment with very little legislative movement, the heroin and opioid epidemic is an urgent priority where there may be room for consensus, and many, including PORAC, feel optimistic that federal action might soon be taken on the issue.

Pension Reform

PORAC members also lobbied on behalf of two pieces of legislation to correct the calculation of Social Security benefits for law enforcement and other public servants. The legislation, the Social Security Fairness Act (H.R.973/S. 1651) and the Equal Treatment of Public Servants Act of 2015 (H.R. 711), would remedy the Windfall Elimination Provision (WEP) and Government Pension Offset (GPO) formulas, two provisions from the Social Security Act that penalize workers who split their careers between jobs that contribute to Social Security and jobs that do not, which are often state or local jobs. While the Social Security Fairness Act would repeal the WEP and GPO formulas, the Equal Treatment of Public Servants Act would establish a new formula that would treat public servants like the rest of the American workforce. PORAC expressed support for both pieces of legislation, explaining to policymakers that law enforcement officers are disproportionately affected by these provisions and are often penalized for dedicating their lives to the service of their communities.

In advance of PORAC’s fly-in, on March 22 the House Ways and Means Subcommittee on Social Security held a hearing to discuss the various Social Security provisions that affect public employees, as well as proposals for calculating public employees’ benefits in a proportional manner, including H.R. 711. As Subcommittee Chairman Sam Johnson (R-Texas) stated, “Hardworking Americans who have paid into Social Security should have their benefits calculated fairly, and they deserve to know how much they can expect to receive from Social Security. But unfortunately for many of our teachers, firefighters, police officers and others, that’s not the case.” PORAC will continue advocating for meaningful and effective pension reform.

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