Citing the need to protect intellectual property and consumer information like the emails that were leaked in this week’s massive Epsilon hack, the Senate Judiciary Committee called a hearing Wednesday to update the Electronic Communications Privacy Act.
Committee member Sen. Sheldon Whitehouse (D-RI) emphasized that while amending the law and taking the time to define privacy took time, that is time that U.S. cybersecurity remains vulnerable.
“It’s thousands of attacks a minute, not thousands of attacks a day,” he said. “It’s a necessary process, but it’s one that’s not without peril and it’s not one without cost.”
However, ECPA, more familiarly known as the wiretapping law, will probably not see a change in the immediate future. The Judiciary Committee called a hearing for the same reasons last year, and the process has been languishing since then. Without an official position from President Obama’s administration, the amendment process will not move forward.
Originally enacted in 1986, ECPA saw its last major amendment in 2001 with the installment of the PATRIOT Act.
“Given the fact that the inter-agency process appears to have taken over a year at this point, and the conversations between the legislative and executive branch about this have been close to zero as far as I can tell,” said Whitehouse. “The folks attacking us are not waiting.”
“ECPA has never been more important than it is now,” argued James Baker, the associate deputy attorney general who testified at the hearing. He said that most crimes are conducted now over the telephone and the internet.
“The government’s ability to access, review, and act on information is vital,” Baker said.
Other lawmakers, like Sen. Chuck Grassley (R-Iowa), stressed the need to take time and make sure any amendments to the law are airtight.
“This statute, just like the Patriot Act, has specific meanings,” he said. “We need to make sure we don’t create loopholes.”
In the age of the internet overshare, however, definitions of privacy are hazy at best, complicating decisions about when subpoenas are necessary, and what entails a violation of the Fourth Amendment. An example was offered that looking at digital records was a different animal than opening a file cabinet or riffling through a suitcase.
“Courts are struggling with understanding what peoples’ personal subjective understanding of privacy is, because in many cases, they actually want to share a lot of information with the world,” said Baker.
Though Wednesday’s hearing shows that the Judiciary Committee will not give up the question of wiretapping laws anytime soon, it’s clear that the process will not be fast. When Grassley pressured Baker about when the administration would take a position, Baker initially hedged, and said he didn’t want to make any promises.
“We’re doing our homework so that we can have an administration position for you,” he said.
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