- S 1011, the Electronic Communications Privacy Act Amendments of 2011, which
was finally introduced May 17 by Senator Patrick J. Leahy [D-VT], is a
25-page bill that ISPLA is presently reviewing. It is an extensive amendment
to the ECPA since it was first introduced in 1986. However, that law did
not address social networking sites and smartphones. The Senator, who is
chairman of the Senate Judiciary Committee, stated: "Updating this law to
reflect the realities of our time is essential to ensuring that our federal
privacy laws keep pace with new technologies and the new threats to our
security." Although this bill is directed primarily at law enforcement,
ISPLA will be watching how Section 2713 - Location tracking of electronic
communication devices or use of such devices to acquire geolocation
information might in the future impact private sector investigations in some
Comments by Senator Leahy on the Senate floor included the recent data
breaches involving Sony and Epsilon that impacted the privacy of millions of
American consumers. "We are also learning that smartphones and other new
mobile technologies may be using and storing our location and other
sensitive information posing other new risks to privacy. When I led the
effort to write the ECPA 25 years ago, no one could have contemplated these
and other emerging threats to our digital privacy. Updating this law to
reflect the realities of our time is essential to ensuring that our Federal
privacy laws keep pace with new technologies and the new threats to our
Under the current ECPA law, a single e-mail could be subject to as many a
four different levels of privacy protections, depending upon where it is
stored and when it was sent. The proposed bill gets rid of the so-called
"180-day rule'' and "replaces this confusing mosaic with one clear legal
standard for the protection of the content of e-mails and other electronic
communications." Under the proposed bill, service providers are expressly
prohibited from disclosing customer content and the government must obtain a
search warrant, based on probable cause, to compel a service provider to
disclose the content of a customer's electronic communications to the
The bill also provides consumer privacy protections for location information
that is collected, used, or stored by service providers, smartphones, or
other mobile technologies. It will require that the government obtain either
a search warrant, or a court order under the Foreign Intelligence
Surveillance Act, in order to access or use an individual's smartphone or
other electronic communications device to obtain geolocation information.
Senator Leahy stated there are well-balanced exceptions to the warrant
requirement if the government needs to obtain location information to
address an immediate threat to safety or national security, or when there is
user consent or a call for emergency services. The bill also requires that
the government obtain a search warrant in order to obtain contemporaneous,
real-time, location information from a provider. There is an exception to
the warrant requirement for emergency calls for service.
To address the role of new technologies in the changing mission of law
enforcement, the bill also provides new tools to law enforcement to fight
crime. It clarifies the authority under the ECPA for the government to
temporarily delay notifying an individual of that fact the fact that the
government has accessed the contents of their electronic communications, to
protect the integrity of a government investigation. The bill also gives new
authority to the government to delay notification in order to protect
The ECPA Amendments Act, according to Leahy, strengthens the tools available
in ECPA to protect national security and the security of computer networks.
It creates a new limited exception to the nondisclosure requirements under
the ECPA, so that a service provider can voluntarily disclose content to the
government that is pertinent to addressing a cyberattack. To protect privacy
and civil liberties, the bill also requires that, among other things, the
Attorney General and the Secretary of Homeland Security submit an annual
report to Congress detailing the number of accounts from which their
departments received voluntary disclosures under this new cybersecurity
S 1011 defines the kinds of subscriber records that the Federal Bureau of
Investigations may obtain from a provider in connection with a
counterintelligence investigation. This reform will help to make the process
for obtaining this information more certain and efficient for both the
government and providers. The Electronic Communication Privacy Act must
carefully balance the interests and needs of consumers, law enforcement, and
our Nation's thriving technology sector. "The balanced reforms in this bill
will help ensure that our Federal privacy laws address the many dangers to
personal privacy posed by the rapid advances in electronic communications
technologies" stated Senator Leahy.
H. R. 1841, the Data Accountability and Trust Act (DATA) of 2011, introduced
May 11 by Representatives Cliff Stearns [R-FL-6] and Jim Matheson [D-UT-2]
seeks to protect consumers by requiring reasonable security policies and
procedures to protect computerized data containing personal information, and
to provide for nationwide notice in the event of a security breach. This
17-page bill has been referred to the Committee on Energy and Commerce. If
passed, it will seriously affect information brokers. Some investigative
colleagues fear that investigators fall under this definition, even if they
are not customarily viewed as being information brokers. ISPLA takes
exception to that view, especially when one carefully reviews the
Congressional intent and various specific provisions of the proposed bill.
The following is the bill's definition of an information broker.
INFORMATION BROKER- The term `information broker' means a commercial entity
whose business is to collect, assemble, or maintain personal information
concerning individuals who are not current or former customers of such
entity in order to sell such information or provide access to such
information to any nonaffiliated third party in exchange for consideration,
whether such collection, assembly, or maintenance of personal information is
performed by the information broker directly, or by contract or subcontract
with any other entity.
LIMITATIONS- An information broker may limit the access to information
required under subparagraph (B) in the following circumstances:
(I) If access of the individual to the information is limited by law or
legally recognized privilege.
(II) If the information is used for a legitimate governmental or fraud
prevention purpose that would be compromised by such access.
H.R. 1895, the Do Not Track Kids Act of 2011 a 32-page bill to amend the
"Children's Online Privacy Protection Act of 1998 (COPPA)" was introduced on
May 13 by Representatives Edward J. Markey [D-MA-7] and Joe Barton [R-TX-6],
Co-Chairman of the Bi-Partisan Congressional Privacy Caucus.
This bill will extend, enhance and update the provisions relating to the
collection, use and disclosure of children's personal information and
establishes new protections for personal information of children and teens.
Currently, COPPA covers children age 12 and younger, and it requires
operators of commercial websites and online services directed to children 12
and younger to abide by various privacy safeguards as they collect, use, or
disclose personal information about kids.
"Over the past several months, there has been a deluge of data leaks,
breaches, and other exposures of children's personal information," said Rep.
Markey. "When it comes to kids and their use of the Internet, it is
particularly important that stringent privacy protections are applied so
that children do not have their online behavior tracked or their personal
information collected or disclosed.
"Since 1998 when I was the House author of COPPA, children are more likely
to be poked, liked and friended online than on the playground. Now is the
time for new legislation to protect kids and prevent them from being tracked
"The 'Do Not Track Kids Act of 2011' will ensure that kids are protected and
that sensitive personal information isn't collected or used without express
permission," said Markey. "I have long believed that consumers - not
corporations - should have control over their personal information, and this
legislation will protect parents and kids from the dangers that can lurk in
the online environment. The Internet is like online oxygen for many kids -
they can't live without it. We want kids to have Internet access; we also
want to ensure there are appropriate safeguards. I look forward to working
with Rep. Barton and my colleagues to move this much-needed legislation
"Today, I am proud reach across the aisle and join with Rep. Markey to
officially introduce the Do Not Track Kids Act of 2011," said Rep. Barton.
"I believe that every American has the right to choose what they believe to
be best for themselves and their children. But often times in our digital
world that right is lost because your personal information is collected and
stored without you ever knowing.
"This bill is a first step in putting consumers back in control. It lets
you know what types of information are being collected about your kids
online and how it is being used. If you don't like what you learn - you will
now have the authority to change it with just the click of a mouse."
"It is unacceptable for a website operator to act as a dictator with no
consequences, and this bill ensures this type of behavior will not be
directed toward our children," said Rep. Barton. "I look forward to the next
steps in the legislative process, and I look forward to future proposals to
ensure protections of all Americans."
The "Do Not Track Kids Act of 2011" strengthens privacy protections for
children and teens by:
Requiring online companies to explain the types of personal information
collected, how that information is used and disclosed, and the policies for
collection of personal information;
Requiring online companies to obtain parental consent for collection of
children's personal information;
Prohibiting online companies from using personal information of children and
teens for targeted marketing purposes;
Establishing a "Digital Marketing Bill of Rights for Teens" that limits the
collection of personal information of teens, including geolocation
information of children and teens;
Creating an "Eraser Button" for parents and children by requiring companies
to permit users to eliminate publicly available personal information content
when technologically feasible.
"We commend Representatives Markey and Barton for listening to the concerns
of families and taking action by introducing a 'Do Not Track Kids' privacy
bill that places kids and teens front and center," said Jim Steyer, CEO of
Common Sense Media. "As it stands now, the nation's tech privacy policies
are outdated, as they do not include protections for mobile and geolocation
technologies. Kids and teens are being tracked even more than adults, and
marketed to without permission while companies make huge profits off the
data - and that is wrong. It is promising to see leaders of both parties
come together to address these issues on behalf of children and families,
and we hope the bill continues to gain bipartisan support."
"Today's teenagers are growing up in a ubiquitous digital media environment,
where mobile devices, social networks, virtual reality, interactive games,
and online video have become ingrained in their personal and social
experience," said Dr. Kathryn C. Montgomery, Ph.D., Professor, School of
Communication American University. "Members of this generation are, in many
ways, living their lives online. But while youth have embraced new media,
they cannot be expected to understand the subtle, often covert techniques
that digital marketers use to track and influence their behaviors. Many
teens go online to seek help for their personal problems, to explore their
own identities, to find support groups for handling emotional crises in
their lives, and sometimes to talk about things they do not feel comfortable
or safe discussing with their own parents. Yet, this increased reliance on
the Internet subjects them to wholesale data collection and profiling. By
instituting fair information practices for teens now, we can help ensure
they are treated with respect in the rapidly growing digital marketplace."
"Today's youth-and their parents-confront a pervasive and unaccountable
digital data collection system," said Jeff Chester, Executive Director,
Center for Digital Democracy. "When young people are online, including on
mobile phones, playing games, or using social media, they are subject to a
wide-range of stealth practices that can threaten their privacy and health.
Congressmen Ed Markey and Joe Barton's Do-Not-Track Kids bill will create
much-needed safeguards for both children and adolescents. It will usher in a
new Internet era for America's youth, where their privacy is protected and
marketers cannot take unfair advantage of them."
"In today's world many children spend as much time on the Internet as they
do on the playground," said Jim Pierce, President, Childhelp. "The
Markey-Barton Do Not Track Kids Bill is an important first step in
protecting our children from predatory tracking - giving them the freedom to
be children not consumers."
ISPLA notes through its state legislative tracking system that similar
legislation was offered in California in February and recent amendments to
that state's bill have now stricken reference to children and made their
proposed legislation applicable to all citizens of all ages of California.
From our past dealings with the offices of both Markey and Barton, we find
that they are very much in the camp of privacy advocates and that any
legislation offered by them should be carefully scrutinized. Both
congressmen are very influential on the House Energy and Commerce Committee,
before which much privacy legislation reviewed.
Bruce Hulme, ISPLA Director of Government Affairs
To support the proactive work of ISPLA from State Capitols to the Nation's
Capitol please visit www.ISPLA.org <http://www.ispla.org/>
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