ECPA Revamp Work Advised to Avoid Hampering Criminal Investigations
Emerging technologies are affecting how Congress considers revising the Electronic Communications Privacy Act (ECPA), lawmakers and witnesses said Wednesday at a Senate Judiciary Committee hearing. Protecting consumer privacy, while allowing law enforcement to obtain information in investigations, is critical, they said.
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Finding the best way “to bring this privacy law into the digital age will be one of Congress’ greatest challenges,” said Chairman Patrick Leahy, D-Vt. One principle should be balancing privacy rights, public safety and security, he said. Changes also should “encourage American innovation.” They have to “instill confidence in American consumers, law enforcement and the business community,” Leahy added. “We in Congress need to work to ensure that our laws are up to date and do not negatively impact business innovation,” said Ranking Member Chuck Grassley, R-Iowa. Privacy concerns and authentication of technology providers also should be dealt with, he said.
Associate Deputy Attorney General James Baker cautioned against hampering the government in pursuing effective and efficient enforcement of criminal law to protect national security. The government’s ability to “access, review, analyze and act promptly on the communications of criminals that they lawfully acquire … is vital to our mission to protect the public,” he said. The appropriate level of privacy protection should be determined by consumers’ expectation of privacy, mode of communication, control of data, and law enforcement and national security interests, said Cameron Kerry, the Commerce Department’s general counsel.
Another issue for Congress is applying the statute to allow government access to information from mobile geolocation services, some senators said. “The statute does not specify whether the government must always establish probable cause” to get an order for accessing cellphone location data, Leahy said. “We use that information for the basic building blocks of investigations,” Baker said. It also is used to “build our way toward obtaining probable cause,” allowing the use of more-obtrusive investigative measures, he said.
DOJ needs a warrant to collect global positioning system information, Baker said. For cellphone geolocation data, “we have to still go get a court order … albeit under a lower standard for a warrant,” he said. Raising that standard will create an additional burden on law enforcement, agencies and probably the courts, Baker added. “If we raise the standard with respect to some kinds of communications … it’s going to have an impact on law enforcement investigation.”