Innovation Policy Post

Reforming the Electronic Communications Privacy Act (ECPA), designed to protect your online information from unwarranted intrusion by the government, took another step toward reality last Thursday. The Senate Judiciary Committee adopted an amendment to another pending law that would include a portion of ECPA reform. The Committee did not yet pass the amended bill out to the full Senate, instead allowing Senators time to address a few concerns that have been expressed by government.

Last week a federal appeals court ruled on a subject dodged by the Supreme Court last year in US v. Jones: Whether the government can use your phone as a tracking device without getting a warrant first. Unfortunately the Sixth Circuit decided in a 2-1 opinion that you have no reasonable expectation of privacy in your location because your cell phone is transmitting a signal at all times that can be used to track its location.

Last week the Senate Judiciary Committee’s Subcommittee on Privacy, Technology, and the Law held the first of what will probably be many hearings on the privacy implications of facial recognition software. Much of the conversation somewhat predictably focused on how companies are making use of this new technology, and we agree that care should be taken to be sure that this sort of data collection and use is not abused by actors or used in ways that may harm users, or where they don’t know of the use.

The New York Times ran an article detailing the large numbers of information requests that wireless phone carriers in the United States get from the various law enforcement bodies seeking our private information regarding our cell phones. In most cases, as the article points out, these requests are not warrants -- which must be approved by an independent judge -- but instead are simply subpoenas issued by the law enforcement officer without oversight. The current state of the law permits this sort of access to data, but it should not. Congress should waste no time in taking up comprehensive reform of the Electronic Communications Privacy Act in response to these revelations, and give full warrant protections to user’s content online and in the mobile space, as well as to information about their whereabouts. 

Privacy as a competition issue was a focus at the Senate Commerce Committee’s hearing on online privacy Thursday.

Federal Trade Commission Chairman Jon Leibowitz said having privacy rules could help provide a level playing field between companies that have privacy policies and those who don’t.