Panel opens review of online privacy law

Members of the Senate Judiciary Committee grappled Wednesday over the best path forward toward modernizing the Electronics Communications Privacy Act.

"No one would quibble with the notion that ECPA is outdated," Senate Judiciary Chairman Patrick Leahy, D-Vt., said at a hearing, but, he added, "The question of how best to update this law has no simple answer."

Enacted in 1986, the law aims to provide citizens the same privacy protections online that they are legally afforded offline. The committee hearing Wednesday was its first to explore the law in the 111th Congress.

The incredible growth of the Internet, cloud computing and the volume of electronic messages entrusted to third parties are some of the wholesale changes in digital space that require the law to be updated, Commerce Department general counsel Cameron Kerry told the committee.

Whether the 1986 interpretation of "content" compared to "non-content," and their differing privacy interests, hold up against current technology and market conditions needs to be assessed, Kerry said. As the law stands today, content -- such as the body of an e-mail -- is subject to more rigorous privacy standards than non-content, such as telephone records.

"I'm really looking forward to hearing what kinds of conflicts exist between openness and protection," said Sen. Al Franken, D-Minn.

The need for changes to privacy rules governing e-mail was a recurring topic of the hearing.

"E-mail in someone's in-box should not be subject to a different standard than e-mail in your sent-box" said Brad Smith, a legal counsel for Microsoft. "The reality today is that ECPA increasingly falls short of a common-sense test."

More than anything else, the hearing appeared to offer the lawmakers a chance to educate themselves on which components of law required revision and to advance the conversation about ways to do it.

Leahy indicated that the committee would start work on this soon. "We will be back for a lame duck session," he said.