However, he also said there are structural changes taking place on the Hill that will affect action, or inaction, on cyber crime legislation. Burwell said that Sen. Diane Feinstein (D-Calif.) taking over as ranking member of the Senate Judiciary Committee could shift the bias in the encryption-privacy debate towards law enforcement -- though he noted the House has a pro-privacy tilt. Burwell added that "some law enforcement-minded [Senate] Democrats, I think, are starting to retrench from that middle ground because of the fear and uncertainty with the next administration," and the concerns about ceding a President Trump too much law enforcement power. Panelist Amie Stepanovich, U.S. policy manager for Access Now, said that sentiment is not a function of Trump being a Republican. "A lot of that worry comes from statements he has made on the record," Stepanovich said, "on Twitter, in speeches, that are incredibly hostile towards human rights towards civil rights, towards the Constitution." She said Congress also needs to take action to review and codify the amendments to Rule 41 , which went into effect on Dec. 1 and allow the DOJ more leeway in applying for warrants to track hackers and botnets. Panelists also stated that the Electronic Communications Privacy Act (ECPA), originally passed in 1986, needs substantial updating. Privacy advocates argue the law doesn't provide enough protections and judicial review to seek access to data, and law enforcement proponents say the act needs to be amended to provide access to overseas data. "There is no greater area of gridlock than tech policy," said David O'Neil, former acting assistant attorney general for the DOJ's Criminal Division and now in private practice. "At the same time, deals tend to happen when both sides are very unhappy," and he argued both sides are unhappy with ECPA. James Andrew Lewis, senior vice president and director of the Strategic Technologies Program at CSIS, voiced concerns that lawmakers might not appreciate the urgency of the situation.
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