ECPA Reform Gets a Two-Fer

Big news powering the current ECPA reform push being headed by my former CDT colleagues. First out of the gate, the Senate Judiciary Committee‘s historic move in passing (on a […]

Big news powering the current ECPA reform push being headed by my former CDT colleagues.

First out of the gate, the Senate Judiciary Committee‘s historic move in passing (on a bipartisan voice vote) the Leahy-Lee ECPA reform bill, which includes a “warrant for content” provision.

The House Crime Subcommittee held a hearing a version of ECPA reform legislation dealing with Geolocation Privacy and Surveillance.  CDT’s Kevin Bankson and Dr. Joe Hall nearly wore their thumbs out live tweeting the hearing (and doing a smashing job at it).

Bankston wrote a great running account of the hearing in CDT’s PolicyBeta blog. Bankston summarizes hearing events like this:

There was a notable albeit somewhat rough consensus between both the Representatives and the witnesses that:

  • Location data is critically important to modern law enforcement investigations;
  • The current legal standards for location tracking are unclear—a “patchwork”, as Judiciary Committee Chairman Goodlatte described it;
  • Legislation is necessary to clarify those standards;
  • Finding the right balance between privacy and the needs of law enforcement on this complex technological issue may be difficult;
  • but When it comes to tracking a phone using its Global Positioning System (GPS) chip, a warrant based on probable cause should be required—which is not clearly codified in the law right now, but which is DOJ’s current policy.

However, not all was sweetness.  Bankston also notes:

Where consensus broke down was on the question of how the law should treat non-GPS, network-based phone tracking; that is, tracking based on what cell towers you are closest to. The two witnesses with law enforcement backgrounds were skeptical that warrants should be required for cell tower data, which they contended was very general and imprecise.

Another of my old Web 1.0 warrior friends, Matt Blaze, provided some insightful testimony, too, noting that any legislation that isn’t “technology neutral is doomed to become increasingly meaningless.”

For some Friday brain candy, be sure to check out the great “Jones vs Drones” video [shot and edited by yours truly] for a compelling discussion of how opinions in the “US v Jones” US Supreme Court case is relevant to Fourth Amendment searches.

 

About brock

Brock is currently the Executive Editor at Atlantic Media Strategies and former Chief Washington Correspondent for MSNBC; he is the founder/creator/editor of CyberWire Dispatch, the Net's pioneering online journalistic news service. Previously he was the Director of Communications for the Center for Democracy & Technology, a non-profit, Washington, D.C.-based public interest group working to keep the Internet open, innovative and free. The views expressed here are his alone and do not reflect the opinions, attitudes or policy positions of his employer(s) past or present.