On Data Privacy Day, ECPA Stands Frozen in Time

January 28, 2015

By Elizabeth Holland

Today is Data Privacy Day, the annual event aimed at drawing attention to the importance of protecting privacy on the Internet. And guess what? The law that protects the privacy of your online communications and that of your library patrons from government intrusion, the Electronic Communications Privacy Act (ECPA), has still not been updated since it was authored in 1986.

ECPA was passed into law at time when people did not have laptops, did not utilize the cloud, or did not generally use email. Of course, lawmakers did not anticipate the technological advancements of the decades to come, let alone establish the appropriate protections needed to accommodate them. How could they have? 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.

In the last Congress, efforts to update ECPA received broad, bipartisan support, but ultimately stalled. The House bill, the Email Privacy Act (H.R. 1852), even gained a majority 272 co-sponsors, but was never awarded floor time because one federal agency, the Securities and Exchange Commission, worked to keep the bill from coming to fruition.

We anticipate last year’s sponsors will introduce their legislation to update ECPA shortly, and we have urged members the Senate and House to move swiftly to advance the bills. It has been 29 years since ECPA was enacted. Reform is long overdue and there is no better time to focus on the need to protect individuals’ privacy online than on Data Privacy Day.


Federal Advocacy: The Year in Review

December 17, 2014

By Elizabeth Holland

The 113th Congress has come to a close, marking the end of a historically unproductive and largely dysfunctional term. While political and economic factors created new advocacy challenges in 2014, AALL members rose to the occasion and helped to achieve real progress on several of the Association’s Public Policy Positions. Here’s a roundup of action on our priorities in the past year—including several lame duck developments.

GPO Gets a New Name

The recently passed “CRomnibus” spending bill for Fiscal Year 2015 (H.R. 83) included slight increases in funding for the Government Printing Office and the Library of Congress, as well as one particularly noteworthy policy change: it re-names the Government Printing Office as the Government Publishing Office. Throughout the year, AALL members worked in support of the Government Publishing Office Act of 2014 (S. 1947) to provide GPO with a name that more accurately reflects the agency’s role as the “official, digital, secure” source of federal government information in the digital age. S. 1947 was reported by the Senate Committee on Rules and Administration but never received floor time. Instead, the bill text— which also changes the titles of the public printer and deputy public printer to “director” and “deputy director” and replaces gender-specific terms with gender-neutral ones— was rolled into the spending bill and passed into law.

FOIA Reform Phased Out

Though both the House and Senate cleared their respective bills to improve the Freedom of Information Act (FOIA) in 2014, the FOIA Improvement Act (S. 2520) will not become law this year. After clearing a challenge from outgoing Senator Jay Rockefeller (D-W.V.), the Senate bill moved to the House last Monday. Despite what appeared to be solid approval in the House, leaders in that chamber failed to put the measure on the calendar before their members adjourned for the year. The bill would have established a “presumption of openness” with government information, codifying President Obama’s 2009 directive to federal agencies. Congress is likely to revisit the issue next year.

Updates to Presidential and Federal Records Acts Enacted

This year, President Barack Obama signed into law H.R. 1233, the Presidential and Federal Records Act Amendments of 2014. This set of amendments is the first statutory change to the Federal Records Act since it was passed in 1950 and implements the important modernization of the definition of a federal record to include electronic records. It also makes several updates to the Presidential Records Act to improve access. Among several key provisions, the new law codifies the procedures by which former and incumbent presidents review presidential records for constitutional privileges and establishes a reasonable standard for release of records.

Elimination of Indexes Avoided

When the House passed the Federal Register Modernization Act (H.R. 4195) in July, AALL advocates stepped up their advocacy efforts to defend the statutory requirement to print the Federal Register and Code of Federal Regulations and produce indexes for these resources, which would have been eliminated by the bill. Sharing anecdotes about the usefulness of these texts and their indexes in print helped the Government Relations Office to engage with Senate staff about our concerns. The bill died in the Senate.

Privacy Safeguards on Back Burner

Efforts to update the Electronic Communications Privacy Act (ECPA) and reform the National Security Agency’s domestic surveillance practices were both stalled in 2014 amid contentious party divisions. The Senate blocked consideration of the USA FREEDOM Act  (S. 2685) in December, despite support from the White House, Director of National Intelligence, Senators from both parties, tech companies, and a wide coalition of organizations for the bill to curb domestic surveillance practices. Critics of the legislation said they preferred to use the June 2015 reauthorization of the USA PATRIOT Act to enact reforms. A similarly popular bill, the Email Privacy Act (H.R. 1852) to update ECPA, gained 272 co-sponsors this year but was never awarded floor time because one federal agency, the Securities and Exchange Commission, worked to keep the bill from coming to fruition. While AALL is disappointed that both efforts fizzled out, we look forward to the renewed opportunity to advance important privacy protections for individuals and library patrons in the new Congress.


Senate Fails to Advance Surveillance Reform

November 19, 2014

By Elizabeth Holland

The Senate blocked consideration of the USA FREEDOM Act (S. 2685) yesterday, effectively rejecting the last opportunity to reform the National Security Agency’s (NSA) surveillance program before the year’s end. The bill – which had the support of the White House, Director of National Intelligence, Senators from both parties, tech companies, and a wide coalition of organizations, including AALL – failed to reach cloture in a 58-42 vote. Sixty votes are required to proceed to debate and final consideration.

AALL is disappointed by the Senate’s decision to block consideration of the USA FREEDOM Act’s sensible reforms. In doing so, Congress allows the NSA’s overbroad domestic surveillance programs to continue untouched and unchecked. AALL will continue to advocate for reforms that balance the government’s interest in protecting national security with Americans’ privacy rights. Though the vote is a setback, we look forward to future opportunities – including the June 2015 reauthorization of the USA PATRIOT Act – to advance commonsense reforms.


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.


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