Renewed Call for ECPA Reform

September 11, 2014

By Elizabeth Holland

AALL has joined more than 80 privacy advocacy and tech groups on two new letters urging immediate action on Electronic Communication Privacy Act (ECPA) reform. Addressed to Senate Majority Leader Harry Reid and House Majority Leader Kevin McCarthy, the letters call on the leadership to bring their chambers’ ECPA reform bills to the floor, where we believe they will pass overwhelmingly. Both bills (H.R. 1852, S. 607) have stalled in Congress recently, despite widespread support from lawmakers; in the House, more than a majority of Representatives are listed as co-sponsors of the legislation.

As the letters read, “updating ECPA would respond to the deeply held concerns of Americans about their privacy” without impeding law enforcement. H.R. 1852 and S. 607 would make clear that the warrant standard of the Constitution applies to private digital information just as it applies to physical property, eliminating the outdated discrepancy that affords data stored in the cloud less protection than data stored locally.

Importantly, this legislation guarantees Americans’ full constitutional and statutory protections for electronic communications like text messages, emails, photographs, and documents stored online. The only resistance to ECPA reform comes from civil regulatory agencies seeking an exception to allow them to obtain the content of customer communications directly from third party service providers.  Such a carve out would expand government power, as government regulators currently cannot compel service providers to disclose their customers’ communications.  The coalition any rules that would treat private data differently depending on the type of technology used to store it.

AALL urges Congressional leadership to bring H.R. 1852 and S. 607 to a vote now. We strongly support these proposed reforms to ECPA, which ensure important protections to the privacy of library users and appropriately balance the government’s interest in protecting national security with the protections of privacy and freedom from government surveillance the Constitution requires.


Surveillance Reform Moves Forward in Senate

July 29, 2014

By Elizabeth Holland

Today, Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) introduced a compromise version of the USA FREEDOM Act that would significantly limit government surveillance of Americans’ communications. AALL has joined a number of open government groups in a letter of support for the bill and urges Congress to pass it promptly, without weakening the legislation.

In May, the House passed a substantially diluted version of the USA FREEDOM Act, causing many privacy and transparency advocates, including AALL, to withdraw their support.  The new Senate bill, which has the backing of the Obama Administration, restores many of the privacy and transparency measures that were removed in the House.  The new bill would prohibit the National Security Agency’s (NSA) collection of phone records and Internet data in bulk by establishing narrowly defined specific selection terms. The bill would also require the NSA to report more information to the public and would create a panel of special advocates to support privacy rights before the Foreign Intelligence Surveillance Court. In a statement, Leahy said the bill would be the “most significant reform of government surveillance authorities since Congress passed the USA PATRIOT Act 13 years ago.” The Center for Democracy & Technology offers this excellent comparison chart of the House and Senate versions.

With Congress headed home for the month of August and only a handful of legislative days remaining before the November midterm elections, time is of the essence. It’s widely believed Leahy will push to put the bill directly on the Senate floor in early September. While the new USA FREEDOM Act isn’t perfect, the bill offer an important compromise between the White House, Congress, companies, privacy advocates, and the intelligence community, and is our best opportunity for limiting government surveillance of Americans’ communications.


AALL Welcomes Successful House Vote to Limit NSA Surveillance

June 20, 2014

By Elizabeth Holland

An amendment to the Fiscal Year 2015 Defense Appropriations bill that would prohibit the National Security Agency (NSA)’s ability to perform “backdoor” searches passed the House late Thursday on a vote of 292-123.  The measure closes the loophole in the FISA Amendments Act that has enabled the search of government databases for information on U.S. citizens without a warrant. Under the amendment, the NSA cannot use its funds to search that database specifically for a U.S. target. The NSA and Central Intelligence Agency are further barred from requiring device manufacturers to install technologies that create “backdoors” in their devices.

The successful vote—in many ways a surprise given the recent politicking over the USA FREEDOM Act in the House—represents the first time either chamber of Congress has voted to curtail the controversial practices of the NSA revealed by Edward Snowden last year. A similar amendment to Fiscal Year 2014 Defense Appropriations to end the NSA’s phone records collection program was offered by Rep. Justin Amash (R-MI) last August but failed by a narrow 205-217 margin.

AALL continues to focus on opportunities to limit NSA surveillance by improving the House-passed USA FREEDOM Act as it is considered in the Senate Judiciary and Intelligence Committees. Earlier this week, AALL joined a coalition of privacy advocates on a letter to Senate and Committee leadership that “plainly express[es] our position that, unless the version of the USA FREEDOM Act that the Senate considers contains substantial improvements over the House-passed version, we will be forced to oppose the bill that so many of us previously worked to advance.” The letter suggests a number of necessary fixes to the bill, including changes to the specific selection term and greater transparency provisions.  Additionally, AALL has urged the Administration not to renew the bulk telephony metadata program under a Section 215 order which expires today.

We are hopeful that Thursday’s House vote will send a clear signal to Senate leaders and members of the Obama Administration that they must approve real privacy reforms to the NSA’s surveillance practices.


House Set to Vote on Weakened USA FREEDOM Act

May 21, 2014

By Elizabeth Holland

Tomorrow, the House of Representatives is expected to vote on a watered down version of the USA FREEDOM Act (H.R. 3361), after substantial changes to the legislation were made by the Rules Committee earlier this week. The revised bill includes a modified, broadened definition of the term “specific selection term,” which was the key to the bill’s proposal to end bulk collection of Americans’ data, as intended by the bill’s authors. The new version also significantly waters down corporate transparency provisions and is generally weak in its approach to reforming the National Security Agency’s (NSA) surveillance practices.

Reports suggest Administration officials had a hand in the substantial modifications made to the bill, following closed-door negotiations with the Rules Committee. A compromise version of the bill, which AALL supported, unanimously passed the House Judiciary and Intelligence Committees earlier this month.

AALL is disappointed by the changes made to the USA FREEDOM Act by the Rules Committee. Last week, in coalition with a number of open government, civil liberties, and privacy advocates, we urged the Committee to restore crucial transparency requirements and to make clarifications and technical corrections that would strengthen the USA FREEDOM Act before floor consideration. Instead, the changes made by the Committee substantially weaken the USA FREEDOM Act’s ability to prohibit the bulk collection of innocent Americans’ records.

The House will also consider the National Defense Authorization Act (NDAA) (H.R. 4435) tomorrow, including several key amendments to limit government surveillance authorities under Section 702 of Foreign Intelligence Surveillance Act and Section 215 of the USA PATRIOT Act. As a closed rule process will preclude members of the House from offering amendments to the USA FREEDOM Act during floor consideration, the NDAA process is our best hope for reform. Stay tuned for more information.


AALL and Coalition Urge White House to Support ECPA Reform

April 29, 2014

By Elizabeth Holland

AALL joined over 80 signatories on a letter sent yesterday to President Obama advocating for a clean update to online privacy laws. The letter urges the president to support updates to the 1986 Electronic Communications Privacy Act (ECPA) that would guarantee Americans’ full constitutional and statutory protections for electronic communications like text messages, emails, photographs, and documents stored online. The letter also warns against carving out any exceptions in ECPA that would give some government agencies warrantless access to online communications. The Securities and Exchange Commission has been actively seeking such an exception, which would substantially weaken ECPA privacy reforms.

The letter’s signatories represent a diverse coalition of interests, including libraries, consumer protection organizations, civil liberties groups, tech companies, and the U.S. Chamber of Commerce. Congressional support for ECPA reform continues to grow; five new members of the House of Representatives signed as co-sponsors of the Email Privacy Act (H.R. 1852) this week, bringing the total number of co-sponsors to a whopping 205. As our letter concludes, the White House has “a rare opportunity to work with Congress to pass legislation that would advance the rights of almost every American.” We urge President Obama to support meaningful privacy reform today.


Call for ECPA Reform Puts Pressure on SEC

April 11, 2014

By Elizabeth Holland

With the House proposal to update the 1986 Electronic Communications Privacy Act (ECPA) garnering 200 co-sponsors this week, the members of the Digital Fourth coalition — the ACLU, Heritage Action, Americans for Tax Reform, and the Center for Democracy & Technology — sent a letter to the Securities & Exchange Commission (SEC) calling out the agency’s “contradictory or misleading statements” about its work to oppose the popular proposed reform. The SEC has been a vocal opponent of bipartisan legislation (H.R. 1852, S. 607) that would reform ECPA to establish a search warrant requirement for the government to obtain the content of Americans’ emails when those communications are stored with a third-party service provider for more than 180 days.  While this legislation has gained broad bipartisan support in both chambers, the SEC has dragged its feet, claiming an update would interfere with the way it conducts investigations.

In the letter, sent to the commission on Wednesday, Digital Fourth proposed an amendment developed with the lead sponsor of the bill, Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.), to assuage these concerns and implored the SEC to compromise. The amendment would assure that “ECPA cannot be used to shield data in the cloud from ordinary discovery techniques” by allowing the SEC and other regulators to use a subpoena to obtain information held by third-party service providers during the course of an investigation.

AALL strongly supports these proposed reforms to ECPA, which ensure important protections to the privacy of library users. As a member of the Digital Due Process coalition, we advocate for reform that would balance the government’s interest in protecting national security with the protections of privacy and freedom from government surveillance the Constitution requires. As such, we echo the call to the SEC to back these widely-supported commonsense reforms and urge Congress to enact ECPA reform this year.


Happy Birthday, World Wide Web! Make a Wish for ECPA Reform

March 12, 2014

By Elizabeth Holland

On March 12th, 1989, Sir Tim Berners-Lee put forth a proposal to make information sharing possible over computers. That proposal in turn would eventually became the World Wide Web, and today we celebrate its 25th birthday.

It’s a gross understatement to say a lot has changed in technology and the Internet since 1989, from the first website and search engines of the early ‘90s to the more recent rise and growth of cloud computing, However, there has been one constant over time:  the law that protects the privacy of your online communications from government intrusion, the Electronic Communications Privacy Act (ECPA), has not been updated since it was authored in 1986.

Yes, the rules governing your online privacy are older than the Web itself. While technology has advanced at a rapid pace, electronic privacy law has remained at a standstill. Without reform, the kind of electronic communications and records that are common today— think any email, Facebook posts, search history, cloud computing documents, cell phone location information, or text messages older than 180 days— can be freely seized without a warrant.

While two reform bills have been introduced, Congress remains slow to act. The Senate Judiciary Committee passed the ECPA Amendments Act of 2013 (S. 607) in April 2013. It awaits consideration by the full Senate. The House proposal, the Email Privacy Act (HR. 1852) has a not-insignificant 184 co-sponsors, but has not yet been heard in committee. These reforms would establish a search warrant requirement for the government to obtain the content of Americans’ emails when those communications are stored with a third-party service provider. The bills eliminate the outdated “180-day” rule that calls for different legal standards for the government to obtain email content depending upon the age of an email and would also require the government to notify any individual whose electronic communications have been disclosed within 10 days of obtaining a search warrant.

As we celebrate the advances of the Web over the last 25 years, it’s long past time due to reform ECPA and bring electronic privacy law up to speed.


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