Editor’s Note: This post is a joint submission to BakerHostetler’s Discovery Advocate blog.
The Senate Judiciary Committee was slated on Thursday to take up long overdue revisions to the Electronic Communications Protection Act (“ECPA”) and the Video Privacy Protection Act (“VPPA”), but the issue was held over by the committee.
Chairman of the committee, Senator Patrick Leahy (D-VT), who helped draft the ECPA back in 1986, has long been calling for updates that would bring the ECPA in line with the realities of the digital age. Senator Leahy first proposed changes back in May 2011 with the introduction of the ECPA Amendments Act of 2011 but refrained from bringing the bill up to committee while he gathered bi-partisan support. In addition, Leahy had planned to offer an amendment that would update both ECPA and the video privacy bill to cybersecurity legislation earlier this summer; however, Senate Republicans blocked that bill in early August.
The committee announced late Monday that it would take up an update of the VPPA introduced by Rep. Bob Goodlatte (R-Va) that easily passed the House in December and attach provisions to that bill that would amend parts of the ECPA. In his statement, Senator Leahy explained that “[t]he 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.”
The ECPA sets standards for law enforcement access to electronic communications. The proposed updates would eliminate the so-called 180-Day Rule, which provides that e-mail stored with a third-party provider (such as Google) that is older than 180 days can be accessed by law enforcement without a warrant. The 180-Day Rule contrasts with other provisions of the ECPA, which provide that obtaining documents stored on a home computer would require a warrant. This difference in treatment was a result of lawmakers’ assumptions that emails would not be stored for a long period of time. Moreover, the ECPA currently treats digital information as simply a business record that can be gathered by law enforcement without a warrant, a result of the antiquated premise that sharing data was likely only something engaged in by big companies.
The VPPA was enacted in 1988 as a response to the leak of Supreme Court nominee Robert Bork’s video rental records and bars disclosure of video rental records absent written consent. The changes to the VPPA would allow companies such as Netflix to obtain onetime consent to share consumers’ video rental information with others. The measure is strongly backed by Netflix, which recently settled several consolidated class action suits brought under the VPPA related to its retention and disclosure of customer records. The proposed ECPA amendments would require law enforcement to obtain a warrant to access electronic communications.