The U.S. Senate Judiciary Committee has approved a bill that updates the Video Privacy Protection Act and the Electronic Communications Privacy Act, two 1980s-era digital privacy laws in desperate need of a refresh, advocates say.
My bill takes several important steps to help protect digital privacy rights, while also promoting new technologies like cloud computing.
Sen. Patrick Leahy (D-Vt.),
chairman, Senate Judiciary Committee
The new legislation, approved by the committee during a meeting Thursday, Nov. 29, is designed to provide additional privacy safeguards for email and other electronic communications. Judiciary Committee Chairman Patrick Leahy (D-Vt.) authored the new legislation, contending the Video Privacy Protection Act (VPPA) and the Electronic Communications Privacy Act (ECPA) are outdated.
"Three decades after the enactment of ECPA, Americans face even greater threats to their digital privacy as we witness the explosion of new technologies and the expansion of the government's surveillance powers," Leahy said during the meeting's opening statements. "My bill takes several important steps to help protect digital privacy rights, while also promoting new technologies like cloud computing."
Leahy's bill would require a government search warrant based on probable cause to obtain email content from a third-party service provider. The government must also notify individuals when their electronic communication has been disclosed, and within 10 business days provide them a copy of the search warrant used to obtain the information.
The bill also updates the VPPA by allowing videotape service providers to obtain a customer's informed, written consent to share video-viewing information. An amendment offered by Sen. Dianne Feinstein (D-Calif.) states that customers must opt in to any video-sharing agreement, and that any advanced consent to share video-viewing information must be renewed after two years.
"There will still be work to be done on this, but I think this gives us a step to move forward," Leahy said following the vote. "After decades of the erosion of Americans' privacy rights on many fronts, we finally have a rare opportunity for progress on privacy protection."
The legislation passed committee muster despite some reservations from law enforcement groups and other regulatory organizations that wanted to scale back some of the digital privacy rules in emergency investigative situations.
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"I'm sympathetic to the concerns, including whether a limited emergency exemption should exist where time is of [the] essence," said Senate Judiciary Committee Chairman Chuck Grassley (D-Iowa) before the vote.
To help with sensitive law enforcement investigations, the legislative proposal provides that the government can seek a court order to delay notifying an individual of the electronic communication disclosure for as long as 180 days, Leahy said. He also was adamant that the bill's search warrant requirement for electronic communications does not apply to any other federal, criminal or national security laws.
In the days leading up to the Judiciary committee vote, Leahy called current digital privacy laws "significantly outdated" and behind rapid changes in technology. "When I led the effort to write the ECPA more than 25 years ago, no one could have imagined that emails would be stored electronically for years, or envisioned the many new threats to privacy in cyberspace," he said. "That is why I am working to update this law to reflect the realities of our time and to better protect privacy in the digital age."
The bill now moves to the full Senate for a vote.