Senate Panel Puts Off Action on Privacy-Law Overhaul

National Journal

Action on legislation that would overhaul two 1980s-era privacy laws to account for modern technology will likely have to wait until after Congress returns after the November election.

The Senate Judiciary Committee on Thursday began work on legislation, passed by the House in December, that would update the Video Privacy Protection Act but put off final action until the panel meets again — which might not be until the lame-duck session. The video-privacy law bars the disclosure of a consumer's video rental records without written consent.

Judiciary Chairman Patrick Leahy, D-Vt., said he wanted to give members more time to work through some of the concerns they have with the legislation and a substitute amendment he offered to the bill that also would make changes to the 1986 Electronic Communications Privacy Act, which deals with government access to electronic communications.

A broad coalition of tech companies and groups and privacy and civil-liberties advocates have been pushing lawmakers to update the ECPA, saying that its protections are woefully out of date given the explosion of new technologies since it was first enacted.

“Updating these digital-privacy laws to address the realities of our time should not be a partisan issue,” Leahy said in a statement. “Americans from all across our nation —regardless of party affiliation or ideology — are impacted by the many new threats to their privacy in cyberspace.”

Leahy’s substitute, which was approved by the committee by voice vote, would require the government to obtain a search warrant based on probable cause to access e-mail or other electronic communications from a service provider, with some exceptions. The amendment would eliminate current rules that apply different legal standards depending on the age of the communications. The amendment also would require government agencies to notify within three days the owner of the communications they are seeking, but would allow officials to seek a court order to delay this notification for 90 days.

Leahy’s substitute “would allow law-enforcement officials to obtain electronic communications in all appropriate cases while protecting Americansʼ constitutional rights,” a coalition of tech companies and privacy advocates, including eBay, Microsoft, the American Civil Liberties Union, and the Center for Democracy and Technology, wrote the committee earlier this week. “It would provide clarity and certainty to law-enforcement agencies at all levels and to American businesses developing innovative new services and competing in a global marketplace.”

Chris Calabrese, the ACLU's legislative counsel, said the substitute fixes the “most glaring” problems with the current law. He noted, however, that it does not address other problems with ECPA, such as clarifying when law enforcement officials can access cell phone location data.

Sen. Ron Wyden, D-Ore., and Rep. Jason Chaffetz, R-Utah, introduced separate legislation last year that would require law enforcement to obtain a warrant to access geolocation data.

Judiciary ranking member Chuck Grassley, R-Iowa, has voiced some concerns with Leahy’s proposed changes to ECPA. In urging Leahy to delay consideration of the bill, Grassley noted last week that both law enforcement and Obama administration officials have raised concerns with the legislation.

In particular, he said requiring a search warrant “could render civil subpoenas from regulatory agencies unenforceable for certain e-mails. This could impact insider trading investigations, antitrust investigations, and civil rights cases at various federal agencies.”

Leahy’s substitute also would amend the video privacy bill passed by the House. The video privacy law was enacted in 1988 after Supreme Court nominee Robert Bork's video rental history was leaked to a newspaper. The bill passed by the House would allow companies such as Netflix to obtain onetime consent to share consumers' video rental information with others. Leahy’s substitute would make clear that consumers could opt out of this arrangement at any time.