Senate Judiciary Committee Adopts ECPA Reform Substitute Amendment Requiring Warrant for Content; VPPA Would Allow One-Time Consent

Published On September 20, 2012 | By Marc Zwillinger | General
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Today, September 20, 2012, the Senate Judiciary Committee adopted an amendment to H.R. 2471, which would require law enforcement to obtain a warrant based on probable cause in order to compel an electronic communications service provider or a remote computing service to produce email or other stored content.  While the VPPA portion of the bill was originally addressed just towards clarifying how companies may obtain consent to disclose video rental histories on the Internet, it has become a vehicle for a significant new change to the Electronic Communications Privacy Act.

The ECPA amendment, if it becomes law, would eliminate law enforcement’s ability under 18 U.S.C. 2703(b), to obtain email content that has been in electronic storage more than 180 days pursuant to a subpoena or an order under 2703(d).  The amendment thus aligns ECPA with United States v. Warshak, 631 F.3d 266, 288 (6th Cir. 2010), which held that law enforcement could not compel a provider to turn over the contents of subscriber emails based on a mere subpoena without a showing of probable cause.  It further expands the holding of Warshak to cover all email content held by a third party mail provider and all uploaded content held by a third-party provider (to the public) of computer storage and processing services.

The VPPA portion of the bill, which is a variation of what was previously passed by the House of Representatives, would allow providers of video content to disclose and/or share user viewing histories with the prior written consent of consumers (obtained through something other than the Terms of Service or privacy policy), based on the single one-time consent of the user, provided that a user has a subsequent opportunity to withdraw the consent, either on a per video basis or for all ongoing disclosures.

Note – the bill was NOT reported out of committee, the amendment was adopted as a substitute, but the bill will be marked-up in November after the recess.

About The Author

Marc is the founder and managing member of ZwillGen PLLC and has been regularly providing advice and counsel on issues related to the increasingly complex laws governing Internet practices, including issues related to Electronic Communications Privacy Act (“ECPA”), the Wiretap and Communication Acts, privacy, CAN-SPAM, FISA, spyware, adware, Internet gambling and adult-oriented content. He also helps Internet Service Providers and other clients comply with their compliance obligations pertaining to the discovery and disclosure of customer and subscriber information.