H.R. 6529 – The ECPA 2.0 Act of 2012 (Bill Introduced by Rep. Zoe Lofgren / D-CA on 09/21/2012)

by Ian Imrich
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H. R. 6529 -- ECPA 2.0 Act of 2012:

The ECPA 2.0 Act of 2012 would modify the Electronic Communications Privacy Act (ECPA) to strengthen the privacy of Internet users and wireless subscribers from overbroad government surveillance.

ECPA sets legal standards that law enforcement agencies must meet to access electronic communications such as social networking messages or email to/from information. However, ECPA was enacted in 1986, well before modern online services became mainstream, and its standards do not reflect the way these services are used today. 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. These standards are important: cell phone carriers recently reported that U.S. law enforcement agencies made over 1.3 million demands to carriers for subscriber information in 2011.

ECPA 2.0 would implement four basic principles, widely supported by major technology companies, public interest groups of diverse political persuasion, legal scholars, and technical experts:

1. The government should obtain a warrant before compelling a service provider to disclose an individual’s private online communications.

2. The government should obtain a warrant before it can track the location of an individual’s wireless communication device.

3. Before it can install a pen register or trap and trace device to capture real time transactional data about when and with whom an individual communicates using digital services (such as email or mobile phone calls), the government should demonstrate to a court that such data is relevant to a criminal investigation.

4. The government should not use an administrative subpoena to compel service providers to disclose transactional data about multiple unidentified users of digital services (such as a bulk request for the names and addresses of everyone that visited a particular website during a specified time frame). The government may compel this information through a warrant or court order, but subpoenas should specify the individuals about whom the government seeks information.

ECPA 2.0 would apply Fourth Amendment principles to individuals’ digital communications and location data while minimizing the impact on law enforcement investigations. The bill 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.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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