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Inside Privacy Updates on Developments in Global Privacy & Data Security from Covington & Burling LLP

Committee Vote on ECPA, VPPA Amendment Scheduled for Thursday

Posted in Congress, United States

On Thursday, the Senate Judiciary Committee reportedly will vote on Sen. Patrick Leahy’s bill that would amend the Electronic Communications Privacy Act (ECPA) and the Video Privacy Protection Act (VPPA).  The bill would amend the VPPA by clarifying that a consumer may consent to the disclosure of her video viewing information “though an electronic means using the Internet” (e.g., by clicking a button or ticking a box) and that such consent can be provided in advance of a disclosure and continue for a set period of time or until the consumer withdraws her consent.  The amendments to ECPA would, among other things, eliminate the archaic distinctions in the current statute between the legal protections for (1) communications held by “remote computing services” and those held by “electronic communications services” (“ECS”) and (2) for communications stored by an ECS for longer than 180 days and those held for shorter period of time.

Although reports emerged last week that, in response to concerns from law enforcement, Leahy had scaled back the bill’s protections for stored electronic communications, the manager’s amendment released yesterday by Leahy’s office shows only minor modifications to the bill he introduced earlier this year.  The modifications (which are summarized here) mainly concern the time within which the government must notify an individual that the government has obtained the individual’s communications from a third-party provider, when such notice is required by ECPA. 

These changes to the original bill are intended to address concerns raised by law enforcement that the amendments could impede investigations of criminal activity.  However, reports suggest that even the revised bill still may face law enforcement opposition.