Senate Judiciary Pulls ECPA Update

Senate Judiciary Committee chairman Charles Grassley (R-Iowa.) pulled an Electronic Communications Privacy Act update bill from the committee's markup agenda Thursday (June 9) after "poison pill" amendments threatened to expand the bill into areas that neither of its co-sponsors wanted it to go.

The baseline bill, which passed the House 419 to zero, would provide protections for cloud storage by requiring a probable cause warrant for accessing information in the cloud, and extending the protections for e-mails stored over 180 days (currently no warrant is required to access those).

It was scheduled to be marked up -- amended (or not) and voted out of committee --Thursday, but its co-sponsors. Sen. Mike Lee (R-Utah) and Sen. Patrick Leahy (D-Vt.), ranking member of the committee, requested it be pulled rather than allow it to be amended, which they argued would decrease privacy protections.

It was bumped from an earlier markup in hopes that a clean bill could emerge, but that did not happen. 

Leahy pointed out that their bill was both a bipartisan and bicameral compromise. He said if the poison pill amendments were added, he doubted the bill would pass the Senate and certainly would not pass the House, which would have to re-vote any changes to the bill it already passed unanimously.

Leahy helped write the original ECPA law, and said no one anticipated the way communications would be transmitted and stored. He said the bill would tank if controversial amendments were injected and he would hate to see that.

He said he would continue to work with his colleagues and said he hoped the bill could still be passed.

"I hope discussions continue to try to move forward with it," Grassley said. "It seems to me there are large areas of consensus, and it should be possible to reach a compromise that a large majority of the committee can support.

Sen. John Cornyn (R-Tex.), author of one of the amendments identified as a poison pill, said he supports warrants for content, but defended his amendment -- on national security letters allowing the FBI to access content -- saying it was highly targeted and hardly a poison pill, given that it "enjoyed the support of the majority of the committee."

The Cornyn amendment was opposed by Google, Yahoo! and others, who said the amendment would unduly expand FBI surveillance powers.

“It’s disappointing that the important reforms contained in ECPA have been derailed by a handful of senators who are trying to use this vital legislation to undermine Americans’ privacy by expanding the FBI’s ability to access communications without a warrant," said Adam Brandon, CEO of FreedomWorks, a small government, free market group.

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.