Although Senator Rand Paul (R-KY) may have received the most attention for his attendance at South by Southwest (“SXSW”) Interactive, many other members of Congress were represented this year.  Continuing our coverage of the conference, this past weekend we attended a panel on “The Future of Privacy,” featuring congressional representatives Darrell Issa (R-CA), Suzan DelBene (D-WA), and Blake Farenthold (R-TX).  All three representatives support legislation to reform the Electronic Communications Privacy Act (“ECPA”), and the panelists focused their remarks on the importance of extending warrant protections to electronic communications regardless of how long such communications are stored.

The panel began on a somewhat whimsical note with the panelists presenting photographs of themselves from the 1980s.  To drive home the point, Congressman Issa explained a great deal has changed since 1986 when ECPA was first enacted.  The panelists generally focused on the need to protect all electronic mail and other electronic communications no differently than paper records are protected.  Congressman Issa also noted that ECPA reform has an economic impact in light of the increased use of cloud services.

Congresswoman DelBene explained that concerns with ECPA reform within Congress have traditionally included concerns about ensuring law enforcement has access to information when they need it, but she noted that a warrant standard still affords law enforcement access―just subject to some privacy protections.

A member of the audience asked the panel about prospects for ECPA reform in light of Congress’s failure to secure passage of legislation in 2014 notwithstanding broad bipartisan and bicameral support.  In response, Congressman Issa noted that it was important for supporters to hold leadership in the House and Senate accountable for scheduling a vote on the legislation, and he noted that there may be greater such accountability where both the House and Senate are controlled by a single party.

The conversation also addressed collection of data by U.S. intelligence agencies pursuant to the Patriot Act.  Both Congressman Issa and Congresswoman DelBene expressed the belief that the June 2015 expiration of certain provisions of the Patriot Act would be an opportunity for Congress to “make adjustments” to address privacy issues.  In particular, Congressman Issa indicated his desire to broaden whistleblower protections, including by permitting government whistleblowers to contact any member of Congress with concerns about over-collection or misuse of data.

A few other notes that emerged from the discussion include:

  • When asked about mobile phone privacy, Congressman Farenthold noted the importance of protecting mobile phone data from government access.  He also expressed concerns about protecting certain kinds of evidence, including geolocation data, from spoliation if such evidence were subject to a warrant standard.
  • Congresswoman DelBene indicated that she is a cosponsor of both the Law Enforcement Access to Data Stored Abroad Act (or “LEADS Act”), which she said would clarify the standard that governs when U.S. law enforcement can access data outside the U.S., and the Secure Data Act, which she said would prohibit government agencies from requiring “backdoors” into electronic products and services.  She expressed the need for these reforms to address privacy issues.
  • Congresswoman DelBene noted that she and Congressman Issa had recently created an Internet of Things Caucus.
  • Congressman Issa expressed support for criminal penalties for law enforcement and other government personnel breaking the law.

At the same time as this panel, another group of congressmen discussed privacy on a panel entitled, “Re-imagining Privacy for Consumers and Developers.”