DOJ Outlines Areas for Further Investigation in ECPA Reform Hearing

Yesterday, April 6, 2011, two government agencies’ testified in a hearing entitled “The Electronic Communications Privacy Act:  Government Perspectives on Protecting Privacy in the Digital Age” before the Senate Judiciary Committee.  Committee Chairman Leahy has continued to show interest in reforming ECPA.  The administration appears to have more mixed views.   Cameron Kerry, General Counsel of the Department of Commerce, supported updating ECPA as a way to increase consumer confidence in cloud computing services.   Associate Deputy Attorney General, Department of Justice, Jim Baker’s written testimony refused to whole-heartedly agree that ECPA reform is absolutely necessary.  However, Baker’s written testimony made clear that if ECPA reform is pursued the DOJ has its own wish list and identified eight areas where DOJ thinks changes to ECPA should be investigated.  These include areas such as provider disclosures to non-governmental entities and reimbursement, both of which would have implications for industry.  The areas for investigation would also have potential implications for user privacy, such as DOJ’s continued efforts to address the inconsistent language in the National Security Letter provision in Section 2709.