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ECPA Reform Tied to the Video Privacy Protection Act: Senate Mark-Up Set and EDUCAUSE Joins Letter in Support

The Senate Judiciary Committee will take action on September 20, 2012 on an update of the Video Privacy Protection Act(H.R. 2471), which the House passed in December 2011, and attach provisions to that bill that would amend parts of the 1986 Electronic Communications Privacy Act (ECPA). On Thursday, September 13, 2012, Judiciary Chairman Patrick Leahy (D-VT) introduced his amendment to the Video Privacy Protection Act that would prevent companies from sharing customer emails without a search warrant in most cases. Leahy’s amendment would require the authorities to get a probable-cause warrant from a judge to access electronic information.

ECPA set standards for law-enforcement access to electronic communications. Many privacy advocates and technology companies argue that the bill is out of date and that it offers inconsistent protections depending on the type of communications. For example, under current law, email stored with a third-party provider such as Google or Yahoo that is older than 180 days can be accessed by law-enforcement officials without a warrant, while a document stored on a home computer for the same amount of time would require a warrant. ECPA was a forward-looking statute when enacted. However, technology has advanced dramatically since 1986, and ECPA has been outpaced. Consequently, ECPA is a patchwork of confusing standards that have been interpreted inconsistently by the courts, creating uncertainty for service providers (including our campus networks), for law enforcement agencies, and for all who use mobile phones and the Internet. (See EDUCAUSE blog of August 3, 2012 for further information.)

The Digital Due Process coalition, of which EDUCAUSE is a member, has advocated that Congress needs to update the law. EDUCAUSE has joined with the Association of Research Libraries, businesses, and other trade associations in a letter sent to the Senate Judiciary Committee urging support for Leahy’s amendment. The coalition argues that the out-of-date protections in ECPA for access to e-mail and other electronics could hamper the growth of cloud computing and other technologies.

"When Congress first enacted these laws almost three decades ago, e-mail was still a novelty and most Americans viewed movies at home on VHS tapes rented at their local video store," Leahy said. "The explosion of cloud computing, social networking sites, video streaming, and other new technologies in the years since, require that Congress take action to bring our privacy laws into the digital age."

Leahy introduced an ECPA update last year but delayed bringing up the bill for a committee markup in hopes of attracting bi-partisan support. He said that he is hoping that by attaching some ECPA provisions to the House video privacy bill, which was drafted by Rep. Robert Goodlatte (R-VA) and easily passed by the House, that the legislation may attract this critical bipartisan support. The video privacy legislation passed by the House would allow companies such as Netflix to obtain one time consent to share consumers' video rental information with others. Leahy’s amendment would require law enforcement to obtain a warrant to access electronic communications. The original Video Privacy Protection Act bars the disclosure of a person's video rental records without written consent on a rental-by-rental basis. It was enacted in 1988 after Supreme Court nominee Robert Bork's video rental history was leaked to a newspaper.

Leahy had planned to offer an amendment that would update both ECPA and the video privacy bill to cybersecurity legislation earlier this summer. The cybersecurity bill, however, was blocked by Republicans from coming to the Senate floor in early August.

The additional privacy protections drew concern from ranking Senator Charles Grassley (R-IA), who suggested Leahy's proposal could disrupt law enforcement investigations and burden prosecutors. The two sides are still working on a compromise.

EDUCAUSE will continue to monitor and report on this issue.