Wednesday, March 20, 2013

House holds hearing on ECPA revisions, new Senate bill seeks to require probable cause for content

If you missed yesterday's House hearing on the Electronic Communications Privacy Act, the testimony is available here by video and here by written testimony. Witnesses included Elana Tyrangiel (DOJ), Orin Kerr (GW Law), Richard Littlehale (Tenn. Bureau of Investigation), and Richard P. Salgado (Google).

Here's a brief summary of each witness's testimony:

  • Tyrangiel - The 180-day rule under the ECPA should be abolished, and opened emails should not be treated differently from those which are unopened. Also, addressing information in e-mails should be available with a subpoena similar to that of telephone calls. The standard for 2703(d) orders should be clarified (must a court issue the order with specific and articulable facts or can probable cause be required?). "It is important that any proposed changes to ECPA take into account the ability of civil regulators and litigators to compel disclosure of information from providers."
  • Kerr - Outlined five problems with the statute, including the 180-day rule, the fact that there is no protection for search engine requests, the uncertain scope of warrant requirements (through court opinions like Theofel and Jennings), the statute's failure to satisfy the Fourth Amendment, and the need for particularity, minimization, and non-disclosure rules.
  • Littlehale - Carriers should be required to keep all communications for one year. "There can be no question that some of that information holds the keys to finding an abducted child, apprehending a dangerous fugitive, or preventing a terrorist attack." Any attempt to require probable cause "should be accompanied by provisions that ensure accountability and prompt response by service providers."
  • Salgado - ECPA should be updated, abolishing the 180-day rule and adopting Warshak's warrant requirement for e-mail content.
Also in ECPA news yesterday, Senators Patrick Leahy (D) and Mike Lee (R) filed legislation to update the statute, abolishing the 180-day rule, requiring probable cause to obtain content, and ordering notification to individuals within 10 days of disclosure.


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