The Senate Judiciary Committee yesterday took a significant step forward towards enhancing data privacy. By bipartisan voice vote, the Committee approved Senators Leahy and Lee’s bill (S. 607) to reform the Electronic Communications Protection Act (ECPA) and extend greater privacy protections to content stored in the cloud. As I discussed previously, ECPA, and particularly its controversial provisions in the Stored Communications Act governing privacy of digital content, is widely believed to be in need of reform. The proposal would require law enforcement to obtain a court-issued warrant, supported by probable cause, before compelling commercial ISPs to disclose the contents of all email, social media messages, and other digital content stored in the Cloud.
While Committee approval is a significant step forward, the bill nevertheless faces an uphill battle. Its controversial provision carving out corporate email stored on corporate servers—which under the bill could be obtained with only a subpoena—has already raised concern among privacy advocates. Also notably absent from the Senate bill is any direction on the level of process required for government access to geolocational data—a topic that was the subject of a House Judiciary Committee hearing yesterday and is likely a necessary part of comprehensive ECPA reform.