By Elizabeth Katz

Twenty-five years after authoring the Electronic Communications Privacy Act (“ECPA”), Senator Patrick Leahy has introduced a bill, the ECPA Amendments Act of 2011 (S. 1011), that is intended to adapt the Act to the privacy and security challenges of the 21st Century.  The bill would amend Title II of ECPA, commonly called the “Stored Communications Act” or “SCA,” which regulates the disclosure to private parties and the U.S. government of electronic communications in storage with certain service providers.  Much of S. 1011 increases the requirements that the U.S. government must satisfy to compel disclosure of covered communications.

The bill was introduced amid a flurry of activity in the Senate related to privacy and data security.  Last week, the newly formed Senate Subcommittee on Privacy, Technology and the Law held a hearing on privacy in the mobile communications context (which also touched on ECPA reform), and the Senate Commerce Committee held a similar hearing today (its sixth hearing on consumer privacy in the past 13 months).

After the jump is a summary of S. 1011’s key provisions.Continue Reading Senator Leahy Proposes Amendments to ECPA

This is another big week for privacy. On Monday, Senate Commerce Chairman Jay Rockefeller introduced the Do-Not-Track Online Act of 2011, which we posted about here. And yesterday, the newly created Senate Subcommittee on Privacy, Technology and the Law held its first hearing.  The hearing focused on mobile privacy issues, but also touched on other important privacy-related matters, including reform of the Electronic Communications Privacy Act and data security breaches. The following are highlights from the hearing:

  • Jessica Rich, Deputy Director of the Federal Trade Commission’s Bureau of Consumer Protection, testified that the FTC has “a number of active investigations into privacy issues associated with mobile devices, including children’s privacy.”
  • Ms. Rich also noted that the draft Staff Report published by the FTC in December addresses mobile privacy issues in certain respects, including recommending that companies obtain affirmative express consent before collecting or sharing sensitive information such as precise geolocation data. In response to a question from Senator Al Franken, Ms. Rich explained that location data is especially sensitive because it often involves the data of children and teens and, when gathered over time, can be used to determine what church or political meetings a person attends and when and where a child walks to and from school. She also noted stalking concerns. Ms. Rich also expressed concerns that mobile users are even less likely than other online consumers to read detailed privacy screens, given the small screens of most mobile devices, but noted that the FTC Staff Report recommends clearer disclosures and simpler consent mechanisms. With respect to the status of the Staff Report, Ms. Rich’s written remarks indicate that FTC staff is analyzing the comments it received on its draft Staff Report and will take them into consideration in preparing a final report for release later this year.

Continue Reading Mobile Hearing Covers Mobile Privacy, ECPA Reform, and Data Breach Issues