ECPA Reform Bill Unlikely to Pass in 2012, Says Grassley
Republican and Democratic leaders of the Senate Judiciary Committee were unable to resolve their differences Thursday over a bill aimed at updating the Electronic Communications Privacy Act (ECPA). Though committee members adopted an amendment to the House-passed HR-2471, a bill that would let companies like Netflix share users’ viewing choices with their permission, Chairman Pat Leahy, D-Vt., delayed a vote on the bill until the committee’s next executive business meeting, which stakeholders said would occur after the election. Ranking Member Chuck Grassley, R-Iowa, told us the delay was due to Leahy’s failure to address serious concerns with the amendment and said the committee is unlikely to consider the bill until 2013.
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The Leahy amendment aims to update the 26-year-old ECPA by requiring law enforcement agencies to obtain a warrant in order to request emails and other information held by ISPs and other Internet companies. The provision would also require the government to notify individuals when their email or personal information is disclosed by ISPs to law enforcement and provide them with a copy of the search warrant. The original language in HR-2471 would also loosen video privacy restrictions and permit online video providers like Netflix to integrate their services with social networks (CD Feb 1 p4).
Before Thursday’s business meeting Grassley and Leahy met privately to discuss Grassley’s concern that the proposal would negatively impact law enforcement agencies. Asked later about the meeting, Grassley said he and Leahy “were obviously … not successful in negotiating, so we still have those same concerns.” Grassley then dashed any hopes for reconsideration in the 112th Congress: “With all the stuff the Senate has to do in November and December this shoves it over into next year.”
State, local and federal law enforcement officials are concerned that Leahy’s amendment would “increase the burdens on law enforcement when obtaining electronic communications necessary to catch criminals,” Grassley said in his written remarks. Grassley submitted various letters from law enforcement agencies into the record. One letter from the Federal Law Enforcement Officers Association bemoaned the amendment’s “over-reaching” warrant requirement. J. Adler, the group’s national president, expressed his “profound disappointment” with the legislation and noted that law enforcement agencies were not adequately consulted in the drafting of the amendment. “Since we risk our lives with undying honor to protect and defend the citizenry of our great nation, our perspective should matter and factor into a substantive debate and/or review of the need for ECPA reform,” he said.
Leahy said: “I am and will be working to consider all legitimate concerns,” in his written remarks. “So after we adopt the substitute I intend to postpone further action on the bill while those discussions take place and move to other matters.” As written, Leahy’s proposal includes exceptions to delay law enforcement notification requirements in cases where certain criminal activities are involved. But Grassley said the bill “needs a lot of work before it can proceed” in his written remarks and blamed Leahy for precluding the “swift passage of the Video Privacy Protection Act, which absent this amendment, would likely proceed expeditiously,” he said. Leahy declined to comment after the hearing.
The Center for Democracy and Technology (CDT) was optimistic that the committee would take up the bill after the November election and commended Leahy for his work to reform ECPA. “We applaud the Committee for taking this significant first step in preserving our constitutional safeguards in the face of rapidly evolving technology,” said Greg Nojeim, senior counsel at CDT, by email. “Chairman Leahy’s bill protects privacy, provides law enforcement with the ability to conduct effective investigations, and promotes US technological innovation and business opportunities for cloud computing.”