Issue link: https://www.epageflip.net/i/478810
ByEricaWerner The Associated Press WASHINGTON Membersof Congress who are demand- ing Hillary Clinton's emails are largely exempt from such scrutiny themselves. Congress makes its own rules, and has never sub- jected itself to open records laws that force agencies such as the State Depart- ment to maintain records and turn them over to the public when asked. There's also no require- ment for members of Con- gress to use official email accounts, or to retain, ar- chive or store their emails, while in office or after. That's in contrast to the White House and the rest of the executive branch. Official emails there are supposed to be retained, though the controversy over Clinton's use of a per- sonal email account while secretary of state has ex- posed vague and inconsis- tent requirements from one agency to another. But if the rules at fed- eral agencies are unclear, at least there are rules. On Capitol Hill, there are al- most none. That means that the same House Republi- cans who are subpoenaing Clinton's emails as part of their inquiry into the Beng- hazi, Libya, attacks are not required to retain emails of their own for future inspec- tion by anyone. "Members of Congress can burn everything when they're finished if they want," said John Won- derlich, policy director at the Sunlight Foundation, which advocates for govern- ment transparency. "They have discretion." That might appear to be a double standard, but mem- bers of Congress mostly don't see it that way. And, perhaps surprisingly, open government advocates are largely unconcerned. They agree it makes sense for Congress to be treated dif- ferently from the executive branch, although there are certain private proceedings they would like to see made public, such as some reports generated by the Congres- sional Research Service. For the most part, law- makers say, Congress al- ready operates in a much more open fashion than the other branches of the fed- eral government. Most con- gressional proceedings are conducted in open session, sometimes widely broad- cast, and lawmakers are accountable to the voters at election time. Some ar- gue that requiring mem- bers of Congress to make their correspondence pub- lic could chill their ability to communicate freely with constituents who might not want their views or requests widely exposed. "I don't want to sound like we're separating our- selves from other groups, but there is a reason that you protect constituent cor- respondence, so it's a little different kettle of fish," said Sen. Jeff Flake, R-Ariz. A provision in the Con- stitution known as the "speech or debate" clause provides members of Con- gress with immunity for their legislative acts and has been generally inter- preted to give them broad control over their records, although it's been chal- lenged in court during re- cent corruption investiga- tions. Additionally, because executive branch agencies are bound by the Freedom of Information Act, corre- spondence between a law- maker and, say, the Inte- rior Department can be ac- cessed by the public. The exemptions Congress grants itself aren't just about records. Lawmak- ers have spared themselves from many other laws that cover the rest of society, including those govern- ing workplace health and safety, civil rights and dis- crimination. When Repub- licans took control of Con- gress in 1994 they sought to eliminate the percep- tion that lawmakers played by different rules. They an- nounced, as Item 1 in their "Contract with America," plans to require that all laws that apply to the rest of the country apply to Con- gress, too. The concept was en- shrined in the Congressio- nal Accountability Act of 1995. But issues like open records weren't covered. The controversy over Clinton's emails has drawn plenty of attention on Capi- tol Hill. Some has been con- tentious, such as House Re- publicans signaling plans to expand their Benghazi inquiry. Then there are a few senators who have been pressed to admit — or perhaps boast — that they rarely if ever use email. Yet there's little sign the flap will prompt much self-reflection or change on Capitol Hill. Lawmak- ers and aides in both par- ties say there's been no such talk. A spokesman for Rep. Trey Gowdy, R-S.C., who is spearheading the hunt for Clinton's emails as head of the Benghazi inquiry com- mittee, indicated the con- gressman has no interest in changing the rules on lawmakers' emails, includ- ing his own. "There is a difference be- tween the executive branch, which has the tremendous power to enforce laws, and the legislative branch," said spokesman Jamal Ware, adding elections every two years put the House closer to the people and subject to greater scrutiny. OFFICIAL CORRESPONDENCE Rules for saving, providing emails? Not for Congress PABLOMARTINEZMONSIVAIS—THEASSOCIATEDPRESSFILE Then-Secretary of State Hillary Clinton testifies on Capitol Hill in Washington in this file photo. By Eric Tucker The Associated Press WASHINGTON A Jus- tice Department proposal that could make locating and hacking into comput- ers that are part of crimi- nal investigations easier is raising constitutional con- cerns from privacy groups and Google, who fear the plan could have broad im- plications. Federal prosecutors say their search warrant pro- posal is needed at a time when computer users are committing crimes in on- line anonymity while con- cealing their locations. But civil libertarians fear the rule change, under consid- eration by a federal advisory committee, would grant the government expansive new powers to reach into com- puters across the country. The proposal would change existing rules of criminal procedure that, with limited exceptions, per- mit judges to approve war- rants for property searches only in the districts where they serve. The government says those rules are out- dated in an era when child pornographers, drug traf- fickers and others can mask their whereabouts on com- puter networks that offer anonymity. Such technol- ogy can impede or thwart efforts to pinpoint a sus- pect's geographic location. The Justice Department wants the rules changed so that judges in a district where "activities related to a crime" have occurred could approve warrants to search computers outside their districts. The govern- ment says that flexibility is needed for cases in which the government can't figure out the location of a com- puter and needs a warrant to access it remotely, and for investigations involv- ing botnets — networks of computers infected with a virus that spill across judi- cial districts. "There is a substantial public interest in catch- ing and prosecuting crimi- nals who use anonymizing technologies, but locating them can be impossible for law enforcement absent the ability to conduct a remote search of the criminal's computer," Justice Depart- ment lawyers wrote in one memo explaining the need for the change. The advisory committee considering the rule change is meeting this month. The proposal has gener- ated fierce pushback from privacy organizations, in- cluding the American Civil Liberties Union, which con- tend the rule change could violate a constitutional re- quirement that search war- rant applications be specific about the property to be searched. They also argue the proposal is unclear about exactly what type of infor- mation could be accessed by the government and fails to guarantee the privacy of those not under investiga- tion who might have had access to the same computer as the target, or of innocent people who may themselves be victims of a botnet. "What procedural pro- tections are going to be in place when you do these types of searches? How are they going to be limited?" asked Alan Butler, senior counsel at the Electronic Privacy Information Center. Another critic, Google, says the proposal "raises a number of monumental and highly complex consti- tutional, legal and geopolit- ical concerns that should be left for Congress to decide." Privacy groups are also concerned that the proposal would lead to more frequent use by the FBI of surveil- lance technology that can be installed remotely on a computer to help pinpoint its location. TECHNOLOGY US at odds with Google on computer search-warrant proposal | NEWS | REDBLUFFDAILYNEWS.COM SATURDAY, MARCH 14, 2015 8 A