By Elizabeth Katz

As Senate Judiciary Committee Chairman Patrick Leahy prepares to introduce legislation to reform the Electronic Communications Privacy Act, the Brookings Institution today held a panel on ECPA reform issues. The discussion began with a keynote address delivered by George Washington University Law School professor Orin S. Kerr. Following Mr. Kerr’s remarks, four panelists offered their perspectives: James Dempsey, Vice President for Public Policy at the Center for Democracy and Technology; Albert Gidari, Jr., a Partner at Perkins Coie LLP; Valerie E. Caproni, General Counsel in the Office of the General Counsel for the FBI; and James A. Baker, Associate Deputy Attorney General of the U.S. Department of Justice.

There was a consensus among participants that ECPA needs to be updated to reflect the technological changes that have occurred since the statute’s enactment in 1986 and that legislation should leave room for additional advancements in technology. The panelists also generally agreed that it is important for any statutory revisions to balance privacy interests and law enforcement needs, although they disagreed as to the proper balance.

During the course of the discussion, panelists analogized various types of technology – including email, cloud storage, GPS, and cell phone tower tracking – to more traditional forms of communication, such as mail and telephone conversations. Participants focused particularly on the government’s use of “location information,” which can be obtained through a range of methods, including cell phone tower tracking, GPS, social networking posts, and other sources.

UPDATE: Senator Leahy has introduced legislation to reform ECPA