FTC's Brill: Agency Got It Wrong on E-Mail Privacy

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By Alexei Alexis

March 29 — Outgoing Federal Trade Commissioner Julie Brill said she hopes the agency will rethink its stance on e-mail privacy proposals before Congress.

The FTC issued a statement in September objecting to proposals that would overhaul the 1986 Electronic Communications Privacy Act (ECPA). Proposed changes would make it more difficult for law enforcers across the federal government to access the content of e-mails.

Brill, who is expected to step down on March 31, issued a conflicting statement at the time.

“I think the agency did not take the right position on ECPA reform, and I’m very hopeful that people here at the agency will reflect upon what I've said on this issue,” Brill said in a recent interview with Bloomberg BNA.

“I feel that reform absolutely should go forward, and civil law enforcement agencies like the FTC should not stand in the way.”

House Committee Markup

The House Judiciary Committee is expected to take action on an ECPA overhaul bill (H.R. 699) dubbed the Email Privacy Act on April 13 . The measure has more than 300 cosponsors, not including Committee Chairman Robert Goodlatte (R-Va.), who has expressed concerns.

A committee spokeswoman said she could not comment on the path forward beyond saying that the bill will be amended at the markup.

Efforts to update ECPA have also triggered concerns from the Securities and Exchange Commission.

The Email Privacy Act would update ECPA by establishing a uniform warrant requirement for stored communication content. The measure has been strongly endorsed by privacy advocates, as well as leading technology companies such as Google Inc.

Similar legislation (S. 356) is pending before the Senate Judiciary Committee.

FTC Concerns

The FTC has told Congress that it supports the goal of updating ECPA but is concerned that proposed legislation might impede the agency's enforcement efforts in the future.

“Under recent legislative proposals, to obtain content from an ECPA service provider, the government would need to obtain a criminal warrant, which is not available to the FTC,” Dan Salsburg, chief counsel of the FTC's Office of Technology, Research and Investigation, said at a Senate Judiciary Committee hearing in September.

“The proposals would require a warrant for all forms of content, even those in which a target has no reasonable expectation of privacy,” he added.

A hearing statement prepared by the FTC urged Congress to consider establishing a “judicial mechanism” that would authorize the commission to seek a court order directing a provider to produce e-mail content after the provider has refused to cooperate with an agency demand.

Brill Statement

In a separate statement, Brill said she wasn't convinced that such authority is necessary to maintain the commission’s effectiveness as a law enforcement agency. “On the other hand, I am concerned that a judicial mechanism for civil law enforcement agencies to obtain content from ECPA providers could entrench authority that has the potential to lead to invasions of individuals’ privacy and, under some circumstances, may be unconstitutional in practice,” she said.

To contact the reporter on this story: Alexei Alexis in Washington at aalexis@bna.com

To contact the editor responsible for this story: Tiffany Friesen Milone at tmilone@bna.com