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ECPA Reform Moves Forward to Require a Warrant for Email

Today, November 29, 2012, the Senate Judiciary Committee approved a bill that would require law enforcement officers to obtain a warrant from a judge before gaining access to the contents of email and other electronic communications stored in the cloud.  The amendment to the Senate version of the Video Privacy Protection Act (VPPA) (H.R. 2471) would amend the 1986 Electronic Communications Privacy Act (ECPA), which currently allows investigators to read email and other private documents with only a subpoena, issued by a prosecutor without judicial approval.  As was written in the Washington Post editorial, "If you left a letter on your desk for 180 days, you wouldn’t imagine that the police could then swoop in and read it without your permission, or a judge’s."

The bill, which received bi-partisan support, can now proceed to the full Senate for a vote. Sen. Patrick Leahy (D-VT), the author of the bill and Chairman of the Judiciary Committee, said he does not expect the full Senate to vote on the measure until next year.  He called the Committee vote an important step forward and said he plans to negotiate with the House to guide the bill to passage during the next Congress.

As the Center for Democracy and Technology (CDT) noted:

Our privacy laws are woefully outdated given the rapid advance of technology. This vote today sets the stage for updating the law to reflect the reality of how people use technology in their daily lives. It keeps the government from turning cloud providers into a one-stop convenience store for government investigators and requires government investigators to do for online communications what they already do in the offline world: Get a warrant before reading postal letters or searching our homes. This bill would support the development of cloud computing services and other innovative technologies.

The bill would also amend the VPPA, which cleared the House last year, would allow users of Facebook and other social media sites to opt in to automatically share which online videos they have watched.  Currently, Facebook users can choose to automatically reveal which songs they listen to and which articles they read.  However, the VPPA bans the sharing of any video history information without written consent by the consumer or a warrant from the police.  Changing the VPPA is reportedly Netflix's top lobbying priority in Washington.  During today’s proceeding, Senators Dianne Feinstein (D-CA) and Al Franken (D-MN) successfully co-sponsored an amendment that limited the duration of this blanket consent, ensuring that video service providers have to get consent from consumers once every two years.  Sen. Leahy said  that the legislation will allow consumers "if they wish, to share their movie and television watching experiences through social media, while also ensuring that the important privacy protections in this law are not diminished."

EDUCAUSE is a member of the Digital Due Process coalition that has worked consistently to effect an update to the ECPA law.  (See EDUCUASE blogs of August 3, 2012, September 14, 2012, and September 21, 2012 for further information.)

EDUCAUSE will continue to monitor and report on this issue.

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