Proposed ECPA Privacy Changes Stalled

On June 21, 2016, we reported on a pending amendment to the Electronic Communications Privacy Act (ECPA) that would dramatically shift the trends regarding privacy rights concerning sensitive electronic data. On June 22, the Senate suspended a substantively similar pending amendment, therefore adding fire to the already contentious topic.

The amendment to a fiscal 2017 Commerce-Justice-Science spending measure (H.R. 2578), proposed by Senator John McCain (R-Arizona), would allow the Federal Bureau of Investigations to get certain user information from digital communications providers without a warrant. Lawmakers voted 58–38 on limiting the debate on the proposed amendment. Sixty votes were needed to limit the debate.

While the procedural defeat is not the final say for the amendment, it does stall the amendment indefinitely.

Senators Patrick Leahy (D-Vermont) and Ron Wyden (D-Oregon) both spoke in opposition to the amendment, arguing that it allows the government to invade U.S. citizens’ privacy without any judicial oversight. Senator Wyden further argued that the amendment is unnecessary; an emergency provision he successfully added as an amendment to 2015’s USA Freedom Act already allows law enforcement agencies to gather data and communications first and obtain warrants later if there is reason to believe it is necessary for the protection of the safety of the American people.

Though Senator McCain’s amendment is stalled and the amendment to the ECPA remains pending, the Senate Intelligence Committee recently approved an intelligence authorization bill for fiscal year 2017 that includes a provision accomplishing much of the same. If or when these changes will become law remains unclear; however, one thing is certain—this topic will remain in the forefront.

Jenny Lewis is an associate at Nixon Peabodya global law firm specializing in complex challenges in litigation, real estate, corporate law and intellectual property anywhere in the world. Read more Nixon Peabody blogs here.

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