Senators, Groups Call for New Rules On Electronic Communications Privacy

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By Alexei Alexis  

Sens. Ron Wyden (D-Ore.) and Mark Kirk (R-Ill.) Oct. 18 joined a broad coalition of groups in calling for new federal “rules of the road” to protect the privacy of Americans' electronic communications in light of the rapid growth of mobile devices and other technologies.

The senators drew attention to the issue at a press event timed to coincide with the 25th anniversary of the Electronic Communications Act (ECPA).

Wyden and Kirk are pushing legislation (S. 1212) that would require law enforcement to get a warrant to obtain “geolocation data” from mobile devices and mandate that service providers gain prior user consent before sharing such information with third parties.

The measure would also criminalize the interception of geolocation data by unauthorized third parties and allow individuals to file lawsuits to seek statutory damages of up to $10,000 for intentional violations of the proposed law.

“This is an area, it seems to me, where new tools call for some new common sense rules,” said Wyden, who introduced the proposed legislation, dubbed the Geolocational Privacy and Surveillance (GPS) Act, in June.

Judiciary Committee Examining Issue.

The bill is currently pending before the Senate Judiciary Committee, which has undertaken a review of ECPA that is ultimately expected to result in legislative action.

A companion bill has been introduced in the House by Rep. Jason Chaffetz (R-Utah).

Kirk, who recently signed on as a senate co-sponsor, said the legislation is a bipartisan product that should attract strong support from his Republican colleagues.

He noted that a new provision was added to ensure that the bill does not create a new cause of action.

“This is not a trial lawyer employment act,” he said.

Wyden has agreed to support a future amendment by Kirk that would clarify that the GPS Act does not establish a new cause of action against law enforcement officers or telecommunications companies and does not modify or repeal any existing cause of action, according to a press release from Kirk's office.

Overall, Kirk said the bill represents a good first step in protecting Americans' geolocation privacy rights. However, he said that more privacy work may be needed going forward in areas such as cloud computing. “That might be a next step that we take,” he said.

The event was co-sponsored by a variety of both conservative and liberal groups, including the American Civil Liberties Union, Americans for Tax Reform, Competitive Enterprise Institute, Center for Democracy and Technology, Constitution Project, and Electronic Frontier Foundation.

Christopher Calabrese, a legislative counsel at the ACLU, said the Wyden bill is part of a larger effort to modernize ECPA.

“Twenty-five years is obviously an eternity in technology terms,” he said.

The ACLU and the other organizations that co-sponsored the event are members of the Digital Due Process Coalition, which has been lobbying Congress to pass ECPA reform legislation. The coalition includes leading internet companies, such as Google and Microsoft.

No Markup Scheduled.

Senate Judiciary Chairman Patrick Leahy (D-Vt.) has not yet taken a position on the GPS Act and the bill is not currently listed for a markup, a spokeswoman said.

In May, Leahy introduced his own electronic communications privacy reform legislation (S. 1011). His version, like the Wyden bill, would require the government to obtain a warrant and demonstrate probable cause in order to access geolocation data—a recommendation of the Digital Due Process Coalition.

The Leahy bill also incorporates a coalition proposal to require the government to obtain a search warrant based on a showing of probable cause when seeking access to electronic communications, including when “remote computing service providers” are involved.

“The bills are very similar,” Jim Dempsey, vice president of public policy at CDT, a technology policy group, told BNA following the ECPA reform event. “Ultimately, they will probably have to converge.”

Dempsey said he was “hopeful” that ECPA reform legislation will be enacted within the current Congress, although the outlook is unclear.

The fact that bipartisan work is being done by Wyden and others is a good sign, he said.