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Congress / Tech Daily Dose

Leahy Proposes Changes To Electronic Privacy Law

Patrick Leahy (D-VT) speaks at the Senate Judiciary Committee hearing on the nomination of Judge Sonia Sotomayor to the Supreme Court on July 14, 2009.(Richard A. Bloom)

May 17, 2011

After nearly two years of discussion on the issue, Senate Judiciary Chairman Patrick Leahy, D-Vt., has finally introduced legislation that would update the Electronic Communications Privacy Act.

Leahy introduced the legislation Tuesday to update the 1986 law outlining government access to electronic communications to reflect the vast changes in the technology landscape since he helped craft the measure.

A coalition of tech companies and public interest groups known as the Digital Due Process coalition was formed last year to lobby Congress to update the law to reflect the growing use of new technologies such as cloud computing. They argue that current laws provide different legal standards to electronic communications depending on how it is stored and when it was drafted.

Leahy's legislation would set one standard for the disclosure of e-mail and other forms of electronic communications with a search warrant based on probable cause. The bill would require government officials to notify the owner of such information within three days after it has been obtained. The measure also would require the government to obtain a search warrant or court order under the Foreign Intelligence Surveillance Act in order to access geolocation data from an individual's smart phone or other communications device. The bill also includes an exception to the bill's nondisclosure requirement allowing a service provider to voluntarily disclose data to government officials related to a cyber attack.

"I drafted this bill with one key principle in mind -- that updates to the Electronic Communication Privacy Act must carefully balance the interests and needs of consumers, law enforcement, and our nation's thriving technology sector," Leahy said in a statement. He was the lead author of the original ECPA law, which has been amended over the years but not rewritten.

The American Civil Liberties Union, which is part of the Digital Due Process coalition, praised Leahy for attempting to update the law but cited some concerns with his legislation. The group said it would like to see stronger reporting requirements and a prohibition from the use of information obtained in violation of ECPA in court. The group also voiced concern about the cyber attack provision.

"Clearly, an electronic privacy law that was written the year 'Top Gun' was in theaters is in desperate need of an update. Technology has vastly outpaced our privacy rights, and this bill is a good first step toward rectifying that disparity," said Laura Murphy, director of the ACLU's Washington legislative office. "We're hopeful that Congress will continue to add further protections to the ECPA Amendments Act to ensure that when Americans use new technologies they receive the same constitutional protections."

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