Yesterday, Senator Leahy introduced an amendment to the Video Privacy Protection Act as well as an amendment to the Electronic Communications Privacy Act. Both amendments are designed to harmonize the protections for different types of content online. The ECPA Amendment would require law enforcement to obtain a search warrant to get access to user data stored in the cloud regardless of how long it is stored, and whether the content is email or other electronic documents. That amendment would remove any legal impediment to a user’s decision to store materials remotely as opposed to on their local hard drive. The VPPA Amendment would make it clear that online video services can obtain clear one-time consent from users to enable sharing of video viewing online on social networks in the same manner that the viewing of other content, like articles and music, can already be shared.
The ECPA Amendment would pass into law one of the key principles recommended by the Digital Due Process Coalition, which is a group that includes privacy advocates, cloud storage companies, and leading ECPA practitioners and academics. In order to address any concerns that the ECPA Amendment would unduly hamper non-criminal government investigations, our own Marc Zwillinger sent a detailed letter to the Senate Judiciary Committee explaining why this amendment would not have an adverse effect on these types of cases. That letter is attached. Marc was also quoted in Law360 describing this amendment in more detail. That article can be found here. Former federal prosecutor and member of the United States House of Representatives, Bob Barr, joined Zwillinger in his support of Leahy’s amendment. His letter is available here.