Investigative & Security Professionals for Legislative Action

S 1011, HR 1841 & HR 1895 Updates!

23 May 2011 9:04 PM | Anonymous member (Administrator)

S 1011, the Electronic Communications Privacy Act Amendments of 2011, which was finally introduced May 17 by Senator Patrick J. Leahy [D-VT], is a 25-page bill that ISPLA is presently reviewing. It is an extensive amendment to the ECPA since it was first introduced in 1986.  However, that law did not address social networking sites and smartphones. The Senator, who is chairman of the Senate Judiciary Committee, stated: "Updating this law to reflect the realities of our time is essential to ensuring that our federal privacy laws keep pace with new technologies and the new threats to our security." Although this bill is directed primarily at law enforcement, ISPLA will be watching how Section 2713 – Location tracking of electronic communication devices or use of such devices to acquire geolocation information might in the future impact private sector investigations in some areas.

Comments by Senator Leahy on the Senate floor included the recent data breaches involving Sony and Epsilon that impacted the privacy of millions of American consumers. “We are also learning that smartphones and other new mobile technologies may be using and storing our location and other sensitive information posing other new risks to privacy.  When I led the effort to write the ECPA 25 years ago, no one could have contemplated these and other emerging threats to our digital privacy. Updating this law to reflect the realities of our time is essential to ensuring that our Federal privacy laws keep pace with new technologies and the new threats to our security.”

Under the current ECPA law, a single e-mail could be subject to as many a four different levels of privacy protections, depending upon where it is stored and when it was sent. The proposed bill gets rid of the so-called “180-day rule'' and “replaces this confusing mosaic with one clear legal standard for the protection of the content of e-mails and other electronic communications.” Under the proposed bill, service providers are expressly prohibited from disclosing customer content and the government must obtain a search warrant, based on probable cause, to compel a service provider to disclose the content of a customer's electronic communications to the government.

The bill also provides consumer privacy protections for location information that is collected, used, or stored by service providers, smartphones, or other mobile technologies. It will require that the government obtain either a search warrant, or a court order under the Foreign Intelligence Surveillance Act, in order to access or use an individual's smartphone or other electronic communications device to obtain geolocation information. Senator Leahy stated there are well-balanced exceptions to the warrant requirement if the government needs to obtain location information to address an immediate threat to safety or national security, or when there is user consent or a call for emergency services. The bill also requires that the government obtain a search warrant in order to obtain contemporaneous, real-time, location information from a provider. There is an exception to the warrant requirement for emergency calls for service.

To address the role of new technologies in the changing mission of law enforcement, the bill also provides new tools to law enforcement to fight crime. It clarifies the authority under the ECPA for the government to temporarily delay notifying an individual of that fact the fact that the government has accessed the contents of their electronic communications, to protect the integrity of a government investigation. The bill also gives new authority to the government to delay notification in order to protect national security.

The ECPA Amendments Act, according to Leahy, strengthens the tools available in ECPA to protect national security and the security of computer networks. It creates a new limited exception to the nondisclosure requirements under the ECPA, so that a service provider can voluntarily disclose content to the government that is pertinent to addressing a cyberattack. To protect privacy and civil liberties, the bill also requires that, among other things, the Attorney General and the Secretary of Homeland Security submit an annual report to Congress detailing the number of accounts from which their departments received voluntary disclosures under this new cybersecurity exception.

S 1011 defines the kinds of subscriber records that the Federal Bureau of Investigations may obtain from a provider in connection with a counterintelligence investigation. This reform will help to make the process for obtaining this information more certain and efficient for both the government and providers. The Electronic Communication Privacy Act must carefully balance the interests and needs of consumers, law enforcement, and our Nation's thriving technology sector. The balanced reforms in this bill will help ensure that our Federal privacy laws address the many dangers to personal privacy posed by the rapid advances in electronic communications technologies” stated Senator Leahy.

H. R. 1841, the Data Accountability and Trust Act (DATA) of 2011, introduced May 11 by Representatives Cliff Stearns [R-FL-6] and Jim Matheson [D-UT-2] seeks to protect consumers by requiring reasonable security policies and procedures to protect computerized data containing personal information, and to provide for nationwide notice in the event of a security breach. This 17-page bill has been referred to the Committee on Energy and Commerce.  If passed, it will seriously affect information brokers.  Some investigative colleagues fear that investigators fall under this definition, even if they are not customarily viewed as being information brokers. ISPLA takes exception to that view, especially when one carefully reviews the Congressional intent and various specific provisions of the proposed bill. The following is the bill’s definition of an information broker.

INFORMATION BROKER- The term `information broker' means a commercial entity whose business is to collect, assemble, or maintain personal information concerning individuals who are not current or former customers of such entity in order to sell such information or provide access to such information to any nonaffiliated third party in exchange for consideration, whether such collection, assembly, or maintenance of personal information is performed by the information broker directly, or by contract or subcontract with any other entity.

LIMITATIONS- An information broker may limit the access to information required under subparagraph (B) in the following circumstances:

(I) If access of the individual to the information is limited by law or legally recognized privilege.

(II) If the information is used for a legitimate governmental or fraud prevention purpose that would be compromised by such access.

H.R. 1895, the Do Not Track Kids Act of 2011 a 32-page bill to amend the “Children’s Online Privacy Protection Act of 1998 (COPPA)” was introduced on May 13 by Representatives Edward J. Markey [D-MA-7] and Joe Barton [R-TX-6], Co-Chairman of the Bi-Partisan Congressional Privacy Caucus.

This bill will extend, enhance and update the provisions relating to the collection, use and disclosure of children’s personal information and establishes new protections for personal information of children and teens. Currently, COPPA covers children age 12 and younger, and it requires operators of commercial websites and online services directed to children 12 and younger to abide by various privacy safeguards as they collect, use, or disclose personal information about kids.
 
“Over the past several months, there has been a deluge of data leaks, breaches, and other exposures of children’s personal information,” said Rep. Markey. “When it comes to kids and their use of the Internet, it is particularly important that stringent privacy protections are applied so that children do not have their online behavior tracked or their personal information collected or disclosed.
 
“Since 1998 when I was the House author of COPPA, children are more likely to be poked, liked and friended online than on the playground. Now is the time for new legislation to protect kids and prevent them from being tracked online.
 
“The 'Do Not Track Kids Act of 2011' will ensure that kids are protected and that sensitive personal information isn't collected or used without express permission,” said Markey. “I have long believed that consumers – not corporations – should have control over their personal information, and this legislation will protect parents and kids from the dangers that can lurk in the online environment.  The Internet is like online oxygen for many kids – they can’t live without it.  We want kids to have Internet access; we also want to ensure there are appropriate safeguards. I look forward to working with Rep. Barton and my colleagues to move this much-needed legislation forward.”

“Today, I am proud reach across the aisle and join with Rep. Markey to officially introduce the Do Not Track Kids Act of 2011,” said Rep. Barton. “I believe that every American has the right to choose what they believe to be best for themselves and their children. But often times in our digital world that right is lost because your personal information is collected and stored without you ever knowing.

“This bill is a first step in putting consumers back in control.  It lets you know what types of information are being collected about your kids online and how it is being used. If you don’t like what you learn – you will now have the authority to change it with just the click of a mouse.”

“It is unacceptable for a website operator to act as a dictator with no consequences, and this bill ensures this type of behavior will not be directed toward our children,” said Rep. Barton. “I look forward to the next steps in the legislative process, and I look forward to future proposals to ensure protections of all Americans.”

The “Do Not Track Kids Act of 2011” strengthens privacy protections for children and teens by:

Requiring online companies to explain the types of personal information collected, how that information is used and disclosed, and the policies for collection of personal information;

Requiring online companies to obtain parental consent for collection of children’s personal information;

Prohibiting online companies from using personal information of children and teens for targeted marketing purposes;

Establishing a “Digital Marketing Bill of Rights for Teens” that limits the collection of personal information of teens, including geolocation information of children and teens;

Creating an “Eraser Button” for parents and children by requiring companies to permit users to eliminate publicly available personal information content when technologically feasible.

“We commend Representatives Markey and Barton for listening to the concerns of families and taking action by introducing a ‘Do Not Track Kids’ privacy bill that places kids and teens front and center,” said Jim Steyer, CEO of Common Sense Media. “As it stands now, the nation’s tech privacy policies are outdated, as they do not include protections for mobile and geolocation technologies. Kids and teens are being tracked even more than adults, and marketed to without permission while companies make huge profits off the data – and that is wrong. It is promising to see leaders of both parties come together to address these issues on behalf of children and families, and we hope the bill continues to gain bipartisan support.”

“Today’s teenagers are growing up in a ubiquitous digital media environment, where mobile devices, social networks, virtual reality, interactive games, and online video have become ingrained in their personal and social experience,” said Dr. Kathryn C. Montgomery, Ph.D., Professor, School of Communication American University. “Members of this generation are, in many ways, living their lives online. But while youth have embraced new media, they cannot be expected to understand the subtle, often covert techniques that digital marketers use to track and influence their behaviors. Many teens go online to seek help for their personal problems, to explore their own identities, to find support groups for handling emotional crises in their lives, and sometimes to talk about things they do not feel comfortable or safe discussing with their own parents. Yet, this increased reliance on the Internet subjects them to wholesale data collection and profiling.  By instituting fair information practices for teens now, we can help ensure they are treated with respect in the rapidly growing digital marketplace.”

“Today’s youth and their parents confront a pervasive and unaccountable digital data collection system,” said Jeff Chester, Executive Director, Center for Digital Democracy. “When young people are online, including on mobile phones, playing games, or using social media, they are subject to a wide-range of stealth practices that can threaten their privacy and health. Congressmen Ed Markey and Joe Barton’s Do-Not-Track Kids bill will create much-needed safeguards for both children and adolescents. It will usher in a new Internet era for America’s youth, where their privacy is protected and marketers cannot take unfair advantage of them.”

“In today’s world many children spend as much time on the Internet as they do on the playground,” said Jim Pierce, President, Childhelp. “The Markey-Barton Do Not Track Kids Bill is an important first step in protecting our children from predatory tracking – giving them the freedom to be children not consumers.”

ISPLA notes through its state legislative tracking system that similar legislation was offered in California in February and recent amendments to that state’s bill have now stricken reference to children and made their proposed legislation applicable to all citizens of all ages of

California.  From our past dealings with the offices of both Markey and Barton, we find that they are very much in the camp of privacy advocates and that any legislation offered by them should be carefully scrutinized.  Both congressmen are very influential on the House Energy and Commerce Committee, before which much privacy legislation reviewed.

Bruce Hulme, ISPLA Director of Government Affairs

To support the proactive work of ISPLA from State Capitols to the Nation’s Capitol please visit www.ISPLA.org

“Doing more than just keeping the profession informed”

                                                         ISPLA

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