Senate Judiciary Committee Discusses the Electronic Communications Privacy Act

Senator Patrick Leahy (D-VT), Chair of the Senate Judiciary Committee, led a committee hearing last Wednesday examining the Electronic Communications Privacy Act (ECPA). Department of Commerce (DOC) General Counsel Cameron F. Kerry and Department of Justice (DOJ) Associate Deputy Attorney General James A. Baker testified. Congress enacted the ECPA in 1986 to protect electronic communications from government monitoring or interception. In the hearing, Senator Leahy stated that "the explosion of cloud computing, social networking and other new technologies." have "outpaced the privacy protections included in the law." The law, Leahy argued, does not provide clear guidance for the government to determine how to balance protecting privacy and fighting crime when using new technologies. For example, the law does not clearly spell out the circumstances under which the government can access cell phone or mobile location information when investigating crime. Kerry agreed with Leahy that it was necessary to update the ECPA to provide privacy standards for new technologies. Kerry argued that such an update would increase consumer confidence in cloud computing services. Baker argued that Congress should be cautious about reforming the ECPA. Baker stressed the statute's "enormous economic and social" benefits, and argued that Congress should "refrain from making changes that would impair the government's ability to obtain critical information necessary to build criminal . . . investigations."

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