11/29. The Senate Judiciary
Committee (SJC) held an executive business meeting at which it amended and
approved HR 2471
untitled bill that would require a warrant for accessing cloud stored e-mail,
and that would make it easier for social media users to disclose their video
Summary. As introduced, and as passed by the House on December 6,
2011, this is a bill to amend the "Video Privacy Protection Act" or VPPA.
The House bill contains a modest amendment to
§ 2710 regarding video tape privacy and social media.
Sen. Patrick Leahy (D-VT) has used
HR 2471 as the vehicle for a late in the Congress effort to revise the
Electronic Communications Privacy Act (ECPA) to impose a warrant requirement for
accessing e-mail stored in the cloud.
The bill, as approved by the SJC includes a revised
version of the VPPA revision, and amendments to
18 U.S.C. § 2703
and other sections of the ECPA's Stored Communications Act (SCA) to require the
government to obtain a court warrant to access the content of stored e-mail.
The bill just approved by the SJC provides that
"A governmental entity may require the disclosure by a
provider of electronic communication service or remote computing service of the
contents of a wire or electronic communication that is in electronic storage
with or otherwise stored, held, or maintained by the provider only if the
governmental entity obtains a warrant issued using the procedures described in
the Federal Rules of Criminal Procedure (or, in the case of a State court,
issued using State warrant procedures) that is issued by a court of competent
jurisdiction directing the disclosure."
(Parentheses in original.) See, TLJ's
red line mark up of this bill.
In addition, Sen. Leahy has ambitiously announced that the agenda for the
December 6 executive business meeting of the SJC includes consideration of S 1223
the "Location Privacy Protection Act of 2011", sponsored by
Sen. Al Franken
Neither the House, nor its House
Judiciary Committee (HJC), have approved either S 1223, or a warrants for
stored e-mail bill. Moreover, there is opposition to both in the House, Senate,
and Obama administration, and among federal, state and local law enforcement
officials, prosecutors, and regulators.
Furthermore, the 112th Congress is in its final weeks. The Congress is in a
lame duck session in which budgetary issues dominate its attention. Thus,
enactment of these bills in the 112th Congress is highly unlikely.
ECPA Reform. Neither this bill, nor S 1223, constitute proposals
for comprehensive ECPA reform. Rather, they each address just one of many areas
in which the ECPA is outdated. Although, they address two of the most important
A coalition of companies and groups named the
Digital Due Process (DDP)
announced a set of
four principles for ECPA reform in 2010. See,
titled "Digital Due Process Coalition Proposes Changes to Federal Surveillance
Law" in in TLJ
Daily E-Mail Alert No. 2,068, March 31, 2010.
This bill and S 1223 address two of the DPP's proposals.
The DDP's third proposal is, "Before obtaining transactional data in real
time about when and with whom an individual communicates using email, instant
messaging, text messaging, the telephone or any other communications technology,
the government should demonstrate to a court that such data is relevant to an
authorized criminal investigation."
The DPP's fourth proposal is, "Before obtaining transactional data about
multiple unidentified users of communications or other online services when
trying to track down a suspect, the government should first demonstrate to a
court that the data is needed for its criminal investigation."
These two bills, and the DPP's proposals, seek to protect privacy, liberty
and security. It should also be noted that certain law enforcement,
and intelligence agencies seek amendment to the ECPA to broaden surveillance
powers of government, and surveillance duties of service providers.
For example, there are data retention mandates in the ECPA's Stored
Communications Act (SCA). However, some government officials seek a new and vast
data retention mandate. Rep. Lamar Smith
(R-TX) has tried but failed to enact a broad data retention mandate in the 112th
November 29 SJC Meeting. The SJC approved by unanimous consent an
amendment in the nature of a substitute (AINS) [10 pages in PDF] offered by
Sen. Leahy. Title I is the "Video Privacy Protection Act Amendments Act of
2012". The much longer Title II is the "Electronic Communications Privacy Act
Amendments Act of 2012".
The SJC also approved four amendments to the AINS:
The SJC also rejected an
amendment [2 pages in PDF] to the AINS offered by
Sen. Charles Grassley (R-IA) by a
vote of 6-11. It would have carved out an exception to the warrant requirement
for investigations of crimes "involving" certain enumerated activities.
(at right) stated at the meeting that we need "to contain the way
surveillance is expanding" and "we have to update our privacy
laws". He also referenced the importance of "promoting new technologies
like cloud computing".
He said that in 1986, when the ECPA was enacted, "e-mail was nothing like
it is today".
He said that his bill amends the ECPA to "enhance privacy protections".
It "requires that the government obtain a search warrant based upon probable
cause to obtain the content of Americans' e-mail, and other electronic communications,
when those communications are requested from a third party service provider."
He said that "I think we have to eliminate the anachronistic distinction
made in the law based on whether the emails are more or less than 180 days old."
Sen. Leahy also said that his bill updates the VPPA to allow Americans, "if
they wish, to share their movie and television watching experiences through social
Grassley said that the SJC held a hearing, but that it was two years ago, and
that the government witnesses had "no cleared administration positions".
He argued that the SJC should first hear the concerns raised by law enforcement
officials, and by representatives of federal regulators, such as the Securities
and Exchange Commission (SEC), before legislating.
Government Access to Stored E-Mail. This bill would require a warrant
to obtain the content of e-mail stored in the cloud. The key language is quoted
Actually, the bill addresses e-mail stored with an "electronic communication
service" or ECS, or an "remote computing service" or RCS. RCS is
defined at 18 U.S.C. § 2711.
ECS is defined at 18
U.S.C. § 2510. These definitions are obsolete. However, the bill does not
amend these definitions.
Subsection 2703(a) currently provides that a warrant is required only to
obtain communications in storage with an ECS that is less than 180 days old.
Subsection 2703(a) currently provides that "A governmental entity may require
the disclosure by a provider of electronic communication service of the contents
of a wire or electronic communication, that is in electronic storage in an
electronic communications system for one hundred and eighty days or less, only
pursuant to a warrant issued using the procedures described in the Federal
Rules of Criminal Procedure (or, in the case of a State court, issued using
State warrant procedures) by a court of competent jurisdiction. A governmental
entity may require the disclosure by a provider of electronic communications
services of the contents of a wire or electronic communication that has been
in electronic storage in an electronic communications system for more than one
hundred and eighty days by the means available under subsection (b) of this
The bill would not impose a warrant requirement for accessing things other
than the content of e-mails, such as users' names, addresses, and credit card
The bill would require the government to give notice to the customer of the
e-mail cloud service that it has seized the content of e-mails. However, the
bill would also enable law enforcement agencies to obtain with the warrant a 180
day delay of such notification, for certain enumerated reasons, including
"flight from prosecution" and "jeopardizing an investigation".
The bill would also allow unlimited extensions.
Similarly, the bill would authorize the court to impose a 180 day gag order
on the service providers, also with allowance for unlimited extensions.
This bill would not affect government acquisition of oral communications, such as
through wiretaps and bugs. Nor would it affect government access to stored
communications under the Foreign Intelligence Surveillance Act (FISA).
Video Privacy Protection Act. The VPPA was enacted by the 100th Congress
in 1988 just after the public debates and Senate hearings pertaining to the nomination
of Judge Robert Bork to be a Justice of the Supreme Court, which involved public
disclosure of his video rental records. That bill was Public Law No. 100-68. It is
codified at 18 U.S.C. §
The VPPA currently provides that "A video tape service provider who knowingly
discloses, to any person, personally identifiable information concerning any
consumer of such provider shall be liable to the aggrieved person".
Now, providers of social media, such as Facebook, want users to be able to
disclose their video rentals and recommendations with a one time opt-in
procedure, rather than requiring consent every time they want to recommend a
The bill approved by the SJC on November 29 differs from the
bill passed by the House last year.
The House bill would amend the VPPA to provide that
"A video tape service provider may disclose
personally identifiable information concerning any consumer ... to any person
with the informed, written consent (including through an electronic means using
the Internet) in a form distinct and separate from any form setting forth other
legal or financial obligations of the consumer given at one or both of the
following times -- (i) the time the disclosure is sought; and (ii) in advance
for a set period of time or until consent is withdrawn by such consumer".
The VPPA defines "video tape service". Neither the House bill, nor the
bill approved by the SJC on November 29, would alter that definition.
Sen. Leahy's bill, as amended by an
amendment offered by Sen. Feinstein, would amend the VPPA to provide that
"A video tape service provider may disclose personally
identifiable information concerning any consumer ... to any person with
the informed, written consent (including through an electronic means using the
Internet) of the consumer that---
(i) is in a form distinct and separate from any form setting forth
other legal or financial obligations of the consumer;
(ii)(I) is given at time the disclosure is sought; or (II) is
given in advance for a set period of time, not to exceed 1 year or until consent
is withdrawn by the consumer, which ever is sooner; and
(iii) the video tape service provider has provided an opportunity,
in a clear and conspicuous manner, for the consumer to withdraw on a
case-by-case basis or to withdraw for ongoing disclosures, at the consumer’s
Reaction. Ed Black, head of the Computer
and Communications Industry Association (CCIA), stated in a
that "Updating our laws which protect
vital constitutional rights in this era of technological change has been long
overdue. CCIA is grateful to Chairman Leahy and other supporters of this
legislation for beginning to move legislation ensuring that our emails, instant
messages and social networking communications have the level of protection that
is more on par with the principles of a robust 4th Amendment."
Gregory Nojeim, of the Center for Democracy and
Technology (CDT), stated in a
release that "Our privacy laws are woefully
outdated given the rapid advance of technology. This vote today sets the stage
for updating the law to reflect the reality of how people use technology in
their daily lives. It keeps the government from turning cloud providers into a
one-stop convenience store for government investigators and requires government
investigators to do for online communications what they already do in the
offline world: Get a warrant before reading postal letters or searching our
homes. This bill would support the development of cloud computing services and
other innovative technologies."