Leahy Plans ECPA Amendment Markup, Smith Does Not
Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., is planning to restart a markup of amendments to the Electronic Communications Privacy Act (ECPA), possibly as soon as next week, Capitol Hill and industry officials said. At a panel in San Francisco late Wednesday, Jim Dempsey, vice president-public policy at the Center for Democracy and Technology, said the committee will take up the amendments next week. But a spokeswoman for the committee said it’s planning to finish marking up an ECPA amendment bill, but hasn’t set a schedule for the coming work period. Meanwhile, the House Judiciary Committee has no plans to take up ECPA amendments in the lame duck session, a House aide said. Leahy put a September markup on hold after law enforcement agencies raised concerns (CD Oct 26 p5).
Sign up for a free preview to unlock the rest of this article
Communications Daily is required reading for senior executives at top telecom corporations, law firms, lobbying organizations, associations and government agencies (including the FCC). Join them today!
That would push the possibility of adopting any changes to the statute, which lays out how law enforcement can access certain electronic communications, until the next Congress. At that point, House Judiciary Chairman Lamar Smith, R-Texas, will be term-limited out of his committee leadership. And new committee leadership won’t be decided until the Steering Committee meets, the House aide said. Rep. Bob Goodlatte, R-Va., is widely expected to take on the role of chairman in the next session (CD Nov 2 p5). By then, the Senate ECPA amendment bill could attract further related issues, such as how law enforcement can access consumer GPS data, Dempsey said Wednesday.
For now, some consensus among law enforcement and industry officials seems to be emerging that the 1986 ECPA statute is due for simplification, said Richard Downing, deputy section chief for computer crime at the Department of Justice, participating in the panel via Skype. “It’s a difficult statute and it has a lot of complex definitions,” he said. “But if our goal is to simplify the statute, the question remains do we simplify it and raise the level of difficulty for the government to get access to stuff, or do we lower it?"
For most in the industry, the answer is to require law enforcement agencies to get a search warrant in order to access any content, no matter how old it, whether or not it’s been opened or altered recently, said Nicole Jones, corporate counsel at Google and a former federal prosecutor. Though ECPA lays out procedures for law enforcement to access certain content without a warrant, large companies have generally resisted subpoenas for such information, she said.
The rules are very complicated but it’s typically a paralegal in a law department that is monitoring and applying them, said Mary Wirth, associate general counsel for cloud service at Adobe. “Lots of us have data stored at startups where they don’t have a single lawyer on staff,” she said. “If someone shows up with a civil subpoena, it looks pretty official, but it wasn’t issued by a court,” and an inexperienced company may inadvertently hand over information it shouldn’t have, she said. “We just take a policy position that as a company, we do not turn over our users’ information without a search warrant,” she said.