Antitrust Law Daily Wrap Up, PRIVACY NEWS: FTC “concerned” with Electronic Communications Privacy Act reform, officials testify, (Sep 16, 2015)

By Greg Hammond, J.D.

Testifying today before the U.S. Senate Committee on the Judiciary concerning Electronic Communications Privacy Act (ECPA) reform, FTC Bureau of Consumer Protection Chief Counsel Dan Salsburg discussed the Commission’s support of the objectives of ECPA reform, but identified potential areas of concern.

“As a civil law enforcement agency, the FTC is concerned that recent proposals could impede its ability to obtain certain information from ECPA service providers in future cases,” Salsburg’s prepared testimony stated. “Under recent legislative proposals, however, to compel content from an ECPA service provider, the government would have to obtain a criminal warrant, which is not available to the FTC. The proposals would require a warrant for content even when it is previously public commercial content advertising or promoting a product or service or the customer or subscriber has consented to the provider releasing the content to the FTC.”

According to Salsburg, the FTC believes that the ECPA should be modernized to protect privacy interests in electronic communications while also ensuring the effectiveness of civil law enforcement agencies. This can be done, he said, by authorizing those agencies to (1) obtain previously public commercial content advertising or promoting a product or service, such as websites and marketing materials; (2) compel an ECPA service provider to disclose content with the customer or subscriber’s consent; and (3) seek a court order compelling the production of electronic content, when efforts to obtain information directly from a target fail.

Commissioner Julie Brill did not fully support the testimony, remarking in her own statement that “a judicial mechanism for civil law enforcement agencies to obtain content from ECPA providers could entrench authority that has the potential to lead to invasions of individuals’ privacy and, under some circumstances, may be unconstitutional in practice.”

Brill noted that the FTC already has some authority under the ECPA to obtain content from ECPA-covered entities, but that the Commission rarely uses it. In addition, she suggested that the Commission is already highly effective in (1) uncovering the identities and locations of fraudsters by seeking basic identifying information; (2) tracing the flow of ill-gotten money and locating assets used for consumer redress; and (3) acquiring the content of relevant documents, including nonpublic emails and other messages.

“The costs—in terms of privacy protections for consumers—of solidifying the Commission’s authority to obtain content through ECPA is real,” Brill said. “Fundamentally, I believe that individuals’ privacy interests extend to what they store and send online. I simply am not convinced that a judicial mechanism enabling civil law enforcement agencies to order ECPA-covered providers to turn over content will provide the safeguards against government intrusion to which individuals are entitled.”

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