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

 

May started slowly on Capitol Hill, with the House and Senate in recess during the first week. But when the session resumed, lawmakers continued to address matters that PORAC members raised during last month’s successful fly-in, including encryption, digital security, opioid and heroin abuse, and law enforcement funding.

Outside of Congress, the presidential race reached a very significant milestone on May 3 when, after another strong primary victory in Indiana, Donald Trump bolstered his delegate lead and ultimately forced his two remaining GOP opponents — Texas Senator Ted Cruz and Ohio Governor John Kasich — to drop out of the race. The concession speeches came as a surprise to most political experts, who fully anticipated a contested Republican National Convention in July.

Following the declaration of Trump’s win on the night of the primary, Cruz announced he was suspending his campaign. Less than a week before, Cruz had tapped Carly Fiorina as his vice presidential running mate in an effort to gain supporters and close the gap between him and the frontrunner.

On the morning after the Indiana primary, Kasich gave an emotional speech announcing that he, too, was ending his presidential bid. Kasich had been running a distant third for many weeks but had vowed to remain in the race through the convention. Cruz and Kasich finished with 572 and 156 delegates, respectively.

Although Trump has yet to amass the 1,237 Republican delegates needed to constitute a majority and officially earn him the nomination, it is highly likely he will prevail. The final round of primaries — including California — will take place on June 7, at which point Trump will likely have accumulated a majority of delegates and can be declared the presumptive Republican presidential nominee.

While the race for the Democratic nomination has all but been decided in favor of former Secretary of State Hillary Clinton, Vermont Senator Bernie Sanders has committed to remaining in the contest until the Democratic National Convention in July. Many Clinton supporters have called on Sanders to concede and thus allow the party to unify behind a single candidate, but he appears uninterested in walking away from the race, especially as his campaign continues to win most contests. Nevertheless, for Sanders to overcome Clinton, he would have to convince a majority of superdelegates to switch their allegiance — an incredibly unlikely outcome. Given this reality, it appears Sanders will be limited to the endgame of influencing the party platform.

Electronic Communications Privacy Act

At the end of April, the House of Representatives unanimously passed the Email Privacy Act (H.R. 699) by a 419–0 vote. This bill, which aims to update the Electronic Communications Privacy Act of 1986 (ECPA), would require the government to obtain a warrant to compel service providers to turn over the contents of customer emails, text messages, social media posts and other electronic communications.

Due in part to effective advocating by PORAC, the version of H.R. 699 that the House approved contained improvements over the original version. Specifically, it did not include a provision that would have required law enforcement to notify any individuals targeted by an ECPA warrant that the police had received copies of the person’s digital content.

House lawmakers clearly recognized that while the legislation was needed, it was not perfect. Congressman Eric Swalwell (D-Calif.) filed a formal statement in the Congressional Record urging lawmakers to ensure that any legislation that ends up on the President’s desk adequately addresses law enforcement’s concerns.

On the Senate side, the legislation faces hurdles. Although Senate Judiciary Chairman Chuck Grassley (R-Iowa) has serious reservations about the bill, including sharing concerns that PORAC and other members of the law enforcement community have expressed, he has agreed to have the Committee consider the legislation the week of May 16.

Specifically, Chairman Grassley’s concerns center around the absence of historically recognized warrant exceptions. Currently, if law enforcement has permission from an individual to search or seize data, or needs to search or seize data to address an exigent circumstance or an emergency, Fourth Amendment jurisprudence allows that information to be obtained without a warrant. In its current form, H.R. 699 does not allow for such exceptions.

Assuming the Judiciary Committee agrees to report the legislation, it is uncertain if or when the bill will come before the full Senate. We will monitor the bill’s progress and report on developments.

Burr-Feinstein Encryption Bill

Following the feud between the FBI and tech giant Apple over access to the San Bernardino shooting suspects’ cellphones, PORAC was pleased to see Senate Select Committee on Intelligence Chairman Richard Burr (R-N.C.) and Vice Chairwoman Dianne Feinstein (D-Calif.) release a draft of their Compliance with Court Orders Act of 2016. The senators are soliciting input from the public and stakeholders before formally introducing the bill, which would require all entities to comply with court orders designed to assist law enforcement in addressing terrorist events or other public safety crises.

PORAC believes that this takes important steps toward addressing the risks associated with encryption, and recently sent a letter of support to the senators, thanking them for crafting a bill that equips law enforcement with the timely, cost-effective tools it needs to combat crime in the digital age.

Under the legislation, should a “covered entity” — which includes device and software manufacturers, electronic communication services, remote communication services and providers of those services — receive a court order to produce data, it would be required to provide the requested data to law enforcement in an “intelligible” (unencrypted) format. When unable to do so, they would be required to provide the technical assistance necessary to obtain the data in an intelligible format.

Furthermore, the bill is sensitive to concerns raised by the technology community and strikes a careful balance between protecting private consumer data and helping law enforcement better fight crime. For example, the bill does not provide a “backdoor” for law enforcement to gain access to the communications unilaterally. Instead, it would ensure that control over and access to the protected data on the covered technology remains entirely in the possession of the covered entities that monitor these communication devices. In addition, the bill would prohibit government officers from requiring or prohibiting a covered entity to use a specific design or operating system in complying with a court order.

The bill’s sponsors have not indicated when they plan to move forward with introduction, as they are still gathering feedback from stakeholders and citizens.

Opioid and Heroin Abuse Epidemic

PORAC has been closely following a number of bills in both chambers intended to combat, counter and reverse the spreading scourge of opioid abuse and heroin use in America. During the week of May 9, the House approved a slate of related bills that would directly impact law enforcement, including:

• H.R. 4641, which would establish an interagency task force to review, modify and update best practices for pain management and prescribing opioids
• The Comprehensive Opioid Abuse Reduction Act (H.R. 5046), which would establish within DOJ a comprehensive opioid abuse reduction program that would provide grants to assist state and local governments in addressing the epidemic
• The Good Samaritan Assessment Act (H.R. 5048), which would require the Comptroller General of the United States to conduct a study on Good Samaritan laws that pertain to the treatment of opioid overdoses, including by law enforcement
• The Opioid Program Evaluation Act (H.R. 5052), which would direct the Attorney General to evaluate the effectiveness of grant programs that provide grants for the primary purpose of addressing opioid abuse
• The Co-Prescribing to Reduce Overdoses Act (H.R. 3680), which would encourage and train health care providers to prescribe overdose reversal drugs, such as nalaxone, when they prescribe opioids to patients at risk of addiction and overdose

In a statement released on May 10, the Obama Administration said that while it “welcomes Congressional efforts to elevate the importance of combating the epidemic, the Administration is greatly concerned that, without the resources necessary to prevent opioid addiction and increase access to treatment and recovery services, H.R. 4641, H.R. 5046 and related bills … would do little to help the thousands of Americans struggling with addiction.” In February, the Administration requested $1.1 billion in new funding to address the crisis.