Nadler Examines the Electronic Communications Privacy Act and its Application to Cloud Computing

Press Release

Today, Congressman Jerrold Nadler (D-NY), Chair of the House Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties, chaired a hearing on Electronic Communications Privacy Act (ECPA) Reform and the Revolution in Cloud Computing. The hearing focused on how the growth of "cloud computing" technologies and services may require reforms to ECPA to ensure that, among other things, standards governing law enforcement access to e-mail and other electronic content is treated consistently under the law, regardless of where such content is stored.

"Today, we will explore cloud computing and continue our examination of whether ECPA still strikes the right balance among the interests and needs of law enforcement, industry and the privacy interests of the American people," said Nadler. "I want to acknowledge that our task will be a challenge: to find the appropriate balance between privacy and law enforcement interests; to protect the public while preserving consumer privacy and confidence; and, to support rapid technological innovation and growth yet discern standards for law enforcement access that will not become outdated with each new generation of technology."

ECPA, originally enacted in 1986, creates statutory privacy rights for customers and subscribers of network service providers. It was developed in order to reestablish a balance between privacy and law enforcement needs, which Congress found had been upset by the development of communications and computer technology. The law regulates how the government can obtain access to wire, electronic and stored communications, and customer records.

This was the Subcommittee's third ECPA reform hearing. The first hearing generally introduced the Subcommittee to ECPA reform issues arising from the development of new technologies that did not exist when the statute was enacted. The second hearing explored how the growth in cell phone location technology and associated mobile services may necessitate certain reforms to ECPA.

Witnesses at the hearing were: Professor Edward W. Felten, Director, Center for Information Technology Policy, Princeton University; Richard Salgado, Senior Counsel, Google Inc.; Mike Hintze, Associated General Counsel, Microsoft Corporation; Paul Misener, Vice President for Global Public Policy, Amazon.com; David Schellhase, Executive Vice President, Salesforce.com; Perry Robinson, Associate General Counsel, Rackspace Hosting; Professor Kevin Werbach, University of Pennsylvania; Professor Fred H. Cate, Director, Center of Applied; Cybersecurity Research, Indiana University; Thomas B. Hurbanek, Senior Investigator, Computer Crime Unit, New York State Police; Kurt F. Schmid, Executive Director, Chicago High Intensity Drug Trafficking Area Program; and, Marc J. Zwillinger, Zwillinger Genetski LLP.

Below is Nadler's opening statement, as prepared:

"Today's hearing is the third in which this Subcommittee will consider the statutory framework Congress established in the 1986 Electronic Communication Privacy Act (ECPA) in light of the enormous technological advances in electronic communications in the 24 years since ECPA's passage.

"At the last hearing, we learned about advancements in cellular location-based technologies and related services and how such technologies, while enriching our lives, can provide law enforcement with more precise and, to many of us, more sensitive information about where we may be located at any given time.

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