Senate Judiciary Approves ECPA Reform, House Subcommittee Discusses Geolocation Privacy
Members of the committee expressed concerns over how the bill would affect the ability of civil regulatory agencies to carry out enforcement. Ranking Member Chuck Grassley, R-Iowa, cited recent concerns expressed by SEC Chairman Mary Jo White. According to White, “the vast majority of cases at the SEC are not criminal and therefore would be outside the scope of ability to obtain a warrant, effectively limiting enforcement,” Grassley said. Grassley urged committee members to consider “an amendment to allow a judicial standard for civil matters akin to a criminal search warrant.” Sen. Jeff Sessions, R-Ala., urged the committee to “be really careful, because it’s a big decision we're about to make."
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The bill could also create “a tiered response system” among the third parties that store the electronic communications, Grassley said. If each judge issuing the warrant sets a different timeline for electronic communication disclosure, online service providers might prioritize responding to the warrants with the shortest compliance deadlines rather than those that are most necessary to investigations being conducted by law enforcement agencies, he said.
The committee should consider any conclusions reached by the House Judiciary Committee on geolocation privacy, Grassley said. House Judiciary’s Subcommittee on Investigations held a hearing Thursday on the topic. Depending on what emerges from the hearing, “it would be important for this committee to have the benefit of a hearing to discuss the implications before debating it on the Senate floor,” Grassley said.
The bill would benefit law enforcement agencies and officials, Leahy said. “It’s going to clarify what the legal standard is,” he said. “This just sets a uniform standard.” Leahy said he’s “perfectly willing to work with everybody” to ensure that the bill does not harm the ability of agencies such as the SEC to carry out their responsibilities. But it’s important to move ECPA reform quickly, Leahy said, due to his “overwhelming concern for the privacy of Americans being eroded.” Sen. Sheldon Whitehouse, D-R.I., said nothing the bill’s critics are “concerned about accomplishing here would strike to the heart of the bill in any way."
When considering geolocation privacy law, “Congress must weigh our privacy interests with the needs of law enforcement without stifling commerce and innovation,” said House Judiciary Committee Chairman Bob Goodlatte, R-Va., in his prepared remarks for the House Judiciary Subcommittee on Investigations hearing on geolocation privacy on Thursday. Goodlatte commended the Department of Justice for obtaining a court order for geolocation, ranging from “what is called a 2703(d) federal court order when it seeks historical cell site data on a particular cell phone” to “a search warrant from a federal judge when it seeks very accurate, real-time location information based on GPS satellite technology.” Still, “current DOJ practices do not carry the same weight as federal statutes,” he said, encouraging the subcommittee to reexamine the current “patchwork of federal laws ... and give clarity to individuals, corporations, innovators and law enforcement.”
Senate Judiciary’s vote was commended by members of the Internet industry. “Everyone understands that law enforcement access and constitutional protections should be the same for online files and other digital records as they are for papers stored in a file cabinet,” BSA/The Software Alliance CEO Robert Holleyman said in a statement. Holleyman urged the Senate and House “to take up this bill as soon as possible.” In a statement, Computer and Communications Industry Association CEO Ed Black called the bill “a long overdue step toward bringing our online privacy laws closer to both our existing 4th amendment protections and our reasonable expectations for privacy.” Black said he hopes “that sometime in the next 6 months we can get a full House and Senate vote to update this law."
The Leahy-Lee bill “ensures that there is one standard for all content and provides the necessary clarity for U.S. cloud providers to compete globally,” said Chris Wilson, vice president-federal government affairs at TechAmerica, in a statement. “This is vitally important to the technology community and any American who uses email,” he said.
"The bill replaces a confusing array of distinctions that ECPA makes with a bright line, warrant-for-content rule,” David Lieber, Google privacy policy counsel, wrote in a company blog post (http://bit.ly/10CFpFK). Lieber said Google has been working with House Judiciary and looks “forward to continuing to work with Congress to update ECPA.” In a statement, TechFreedom President Berin Szoka applauded the committee’s vote and urged it to consider issues raised by the Digital Due Process Coalition, a group of Internet companies and trade associations. “Most significantly, that means a warrant requirement for location data,” Szoka said. “The Fourth Amendment requires nothing less.”