Federal Bill Would Require Warrant for Access To Online Communications, Geolocation Data

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Rep. Zoe Lofgren (D-Calif.) Sept. 21 introduced a bill (H.R. 6529) that would require government agencies to obtain a warrant prior to accessing the contents of online communications or geolocation information.

The 2012 ECPA 2.0 Act would amend the Electronic Communications Privacy Act “to strengthen the privacy of Internet users and wireless subscribers from overbroad government surveillance,” according to a fact sheeton the legislation.

According to a Sept. 25 statement announcing the release of the bill, Lofgren does not expect Congress to act upon the bill before the end of the year. She plans to reintroduce it next year.

In 2011, law enforcement agencies in the United States made more than 1.3 million requests to wireless carriers for the information of subscribers, according the fact sheet.  

1986 ECPA Needs an Update.

Revision of ECPA--enacted in 1986--is necessary because the act is outdated in the current internet environment, according to the bill's fact sheet.

“For example, ECPA fails to include clear standards for law enforcement access to location information, leading to significant confusion in U.S. courts as to whether law enforcement should have to obtain a probable cause warrant to track an individual's cell phone location or if a lower standard will suffice,” the fact sheet said.

In 2011, law enforcement agencies in the United States made more than 1.3 million requests to wireless carriers for the information of subscribers, according the fact sheet.

H.R. 6529 would:

• require governmental entities to obtain a warrant prior to requesting the contents of a person's online communications from a service provider;

• make it unlawful for a government entity to intentionally intercept geolocation information unless the interception is authorized by the Foreign Intelligence Surveillance Act, the individual provides consent, the information is accessible to the public, the information is necessary in an emergency, or the entity obtains a warrant;

• require the government to demonstrate that real-time transactional data is relevant to a criminal investigation before it can install a pen register or trap or trace device; and

• discourage the use of administrative subpoenas to obtain information regarding multiple unidentified users of electronic services.

The ECPA 2.0 Act, the fact sheet said, would “promote commercial growth in technology products and services--particularly cloud computing and location-based services--by reducing compliance burdens on businesses and fostering trust with consumers and trading partners concerned about overreaching government access to private communications data.”