House Judiciary Unanimously OKs ECPA Update; Full House Vote Next

The vote is a victory for privacy and civil liberties advocates and technology groups, which have sought major updates to the 1986 Electronic Communications Privacy Act (ECPA), and overwhelmingly supported the bill and compromise amendment (see 1604120035). Goodlatte, who said the amendment was the result of months of "hard work" among law enforcement, privacy advocates and others, told us he thought the full House would vote on the bill "soon but we don't have a date yet."

When a reporter asked whether Goodlatte felt pressured to hold the markup because other members were pressing to get HR-699 attached as an amendment to another bill, he dismissed that notion. "No, we felt that the time had arrived when all of the parties would be willing to come to the table and negotiate some needed changes to the bill," Goodlatte said. "And we were, in fact, right about that timing and we were successful in getting, I think, some significant improvements to the bill. It was a long time in getting people to come to the conclusion that that's in their best interests to do that."

With 314 co-sponsors, the legislation is supported by a veto-proof majority, said the bill's sponsor, Rep. Kevin Yoder, R-Kan., in a statement. It's a "great day" for Fourth Amendment advocates and "Americans, who are one step closer to having private and secure digital communications," he said. The Fourth Amendment protects people's rights from unwarranted government search and seizure, but many said that right hasn't really been extended to people's electronic communications.

Committee members at the markup praised both the underlying bill and Goodlatte's substitute. "I understand the manager's amendment paves the way for stopping some of the folks who were opposed to it from raising too much of a stink," said Rep. Blake Farenthold, R-Texas. "I guess we've got the situation here that compromise and getting something done is ending up with something [that] not everybody loves but is something everybody can live with."

But like Farenthold, several members said they were disappointed a provision in the original legislation that would have required law enforcement agencies to notify targets of their investigation was stripped out of Goodlatte's substitute. Center for Democracy and Technology's Chris Calabrese, who was involved in the negotiations on a compromise, told us the notification requirement was "absolutely an issue. It was part of the compromise that we brokered. We feel like we got a bill that does the most important thing we wanted to do, which is make clear that you need a warrant for the content of communications. Certainly we wanted the notification provision."

Ranking member John Conyers, D-Mich., called the substitute amendment an "effective compromise. We always agreed that a simple warrant-for-content standard is a better approach to protecting our privacy," he said during the markup. "I should also note that the absence of a special carve out for the civil agencies. This committee quickly reached consensus that those proposals were unworkable, unconstitutional and sometimes both." Agencies like the SEC had objected to the uniform criminal warrant standard in the bill since they aren't allowed to obtain such warrants and wanted a lower legal standard to get access to private content. They said without such a carve out, it would impede their ability to gather electronic evidence and conduct investigations.

Calabrese said privacy advocates and others are still focused on getting HR-699 passed by the full House and was unsure about the Senate version at this point. While he said the House bill may have 314 co-sponsors, he didn't want to say passage is guaranteed. "I take nothing for granted," he said. The Senate version, called the ECPA Amendments Act (S-356), is sponsored by Sens. Mike Lee, R-Utah and Pat Leahy, D-Vt. The Senate Judiciary Committee had a hearing September (see 1509170035), but there has been no action on the legislation since. The committee didn't comment.

Bijan Madhani, Computer & Communications Industry Association's public policy and regulatory counsel, told us he's also unsure what's happening with the Senate bill, though he remembers there was some interest in the civil agencies carve out during the hearings. "I don't know if that's still the case," he said. "If the same sort of equities are in play, I think we can make the same sort of arguments on the other side of the aisle."

Goodlatte said during the markup that his committee would hold hearings on other similar electronic privacy issues, namely geolocation. He said he hopes for a hearing on geolocation by the beginning of the new Congress. Both Republican and Democratic members gave a thumbs to that idea. Bills introduced by Rep. Jason Chaffetz (HR-491) and Reps. Zoe Lofgren, D-Calif., Ted Poe, R-Texas, and Suzan DelBene, D-Wash., (HR-656) would essentially establish a warrant standard for government to access geolocation information on Americans. Lofgren said it's a major issue. For instance, during the last six months of 2015, AT&T received nearly 10,000 warrant requests for wiretaps and stored communications, but more than 76,000 requests for geolocation information, she said.

Protecting such information affects both the First and Fourth amendments, said Lofgren at the markup. "If you're afraid you're being watched, it impacts your right to free speech, your right to assembly and even potentially your right to practice your religion. People act and think differently when they know or suspect that they're being watched." CCIA's Madhani said the technology industry is interested in providing the "maximum privacy protection" to customers and has been working with Lofgren and Chaffetz on their bills.