Congress woman Zoe Lofgren recently introduced a bill intending to align the Electronic Communications Privacy Act of 1986 with the current state of technology, especially with respect to cloud computing. The Online Communications and Geolocation Protection Act, backed by tech companies such as Google, Apple, Microsoft, Intel, Twitter, eBay and Amazon, intends to clarify and apply 4th Amendment constitutional protections to online communications and location data. If enacted, it would preclude the interception and/or disclosure of geolocation information. Likewise, no entity would be permitted to use geolocation information obtained in violation of the act.
Similar to the existing ECPA, provisions are included for interception of geolocation information upon consent by the individual or his/her guardian. So too may geolocation information be used in an emergency to assist the individual (for example in a 911 call).
Government entities must obtain a warrant before obtaining geolocation information. Exceptions exist for emergency situations, where the government entity must apply for an order within 48 hours, and must terminate interception upon acquisition of desired information or denial of the order. An exception also exists for government entities operating under the Foreign Intelligence Surveillance Act.
Geosocial networking sites such as Facebook, Foursquare, Twitter, Yelp, or Skype, for example, should take note: the Act also provides for civil remedies. Violators of the Act are subject to equitable or declaratory relief, damages (both actual and punitive), and reasonable attorneys’ fees. Statutory damages exist in the amount of the greater of $10,000 or $100 for each day of violation.
The Senate has a corresponding bill introduced by Senators Patrick Leahy and Mike Lee. On April 25, 2013, this bill (S. 607) was approved by the Senate Judiciary Committee. In general, the Senate version focuses on elimination of the 180-day rule. Under the current versions of ECPA, e-mails stored on a third party’s servers for over 180 days are deemed “abandoned,” which allows the government to obtain those stored messages without a warrant.
See our post on the ECPA for more details on the original law. A forthcoming post will discuss the Geolocation Privacy and Surveillance Act, currently pending in both the House and Senate.
Seth Jaffe (sjaffe@fulbright.com / +1 713 651 5370) is an associate in Fulbright’s Intellectual Property Practice Group.
