Senate Judiciary Committee Holds Over ECPA Update

The Senate Judiciary Committee has held over consideration of legislation updating the Electronic Communications Privacy Act (ECPA) after amendments were offered that could have undone a compromise approach.

Similar legislation, the E-Mail Privacy Act, passed unanimously in the House and supporters were hoping for clean passage in the Senate as well.

The bill updates ECPA to, among other things, require the government to get a probable cause criminal warrant to access emails, social media posts and other online content stored by internet service providers and other email service providers—like Google—in the cloud. And in a nod to the permanence of cloud storage, it eliminates the 180-day sunset on stored communications. Previously a warrant was not required for communications stored beyond 180 days.

During a business meeting to mark up a Senate version Thursday, committee chairman Charles Grassley (R-Iowa) agreed to hold over the bill rather than press the issue with a vote, pointing out that the bill's sponsors had asked that it be held over.

Ranking member Sen. Patrick Leahy (D-Vt.), one of those sponsors, thanked Grassley for the move.

But Grassley said there was broad consensus that the 1986 ECPA bill needed revising given the advances in technology. He said that most agree that given the way email is used and stored it hardly makes sense for its protection to hinge on whether it is 180 days old or whether it has been opened at all. "The privacy of Americans should be protected," he said, and should not depend on email's age at all."

Leahy said he agreed it needed to be updated—he wrote much of the original bill. "Digital files ought to be treated the same as the papers in our filing cabinets in our homes," he said. He pointed to the House passage 419 to 0, adding that the Senate should "give some attention to that, given that there are those who thought that neither body could pass a unanimous resolution that the sun rises in the east."

Leahy pointed to the broad support, but also pointed to last-minute concerns, expressed in Republican amendments, and said he supported delaying moving the bill to the floor in the interests of preserving the broad coalition—"from the right to the left"—rather than see it "destroyed."

Not to pass the bill, he said, "would be an enormous mistake and turning our back on the tremendous work both parties did in the House..."

Several amendments had been proposed over the past few days by Republicans, including one by Sen. Orrin Hatch of Utah, the International Communications Privacy Act (ICPA), that would have addressed government surveillance outside the U.S. by securing data privacy internationally.

ICPA would reign in what Hatch called the overreach of law enforcement's ability to access data worldwide.

"Currently, the U.S. government takes the position that it can compel a technology company to turn over data located anywhere in the world belonging to a citizen of any company so long as the data can be accessed by a company subject to U.S. jurisdiction."

Hatch did not introduce the amendment but did introduce it as a standalone bill. Grassley said he was making no promises but would see how that bill "fit into" the committee's agenda.

John Eggerton

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.