Private Investigator News Updates for May 2011

• May 25, 2011
• by Bruce Hulme
• In the News

SCALI Appoints New State Director
Ken Walter is the new State Director for the South Carolina Association of Legal Investigators (SCALI). Walter began his two-year term on May 9. He steps in for Vicki Childs, who held the position for six years.

ISPLA Tracking Privacy and Data Legislation
S 1011, the Electronic Communications Privacy Act Amendments of 2011, which was finally introduced May 17 by Senator Patrick J. Leahy [D-VT], is a 25-page bill that ISPLA is presently reviewing. It is an extensive amendment to the ECPA since it was first introduced in 1986. However, that law did not address social networking sites and smartphones. The Senator, who is chairman of the Senate Judiciary Committee, stated: "Updating this law to reflect the realities of our time is essential to ensuring that our federal privacy laws keep pace with new technologies and the new threats to our security." Although this bill is directed primarily at law enforcement, ISPLA will be watching how Section 2713 Location tracking of electronic communication devices or use of such devices to acquire geolocation information might in the future impact private sector investigations in some areas.

Under the current ECPA law, a single e-mail could be subject to as many a four different levels of privacy protections, depending upon where it is stored and when it was sent. The proposed bill gets rid of the so-called "180-day rule'' and replaces this confusing mosaic with one clear legal standard for the protection of the content of e-mails and other electronic communications. Under the proposed bill, service providers are expressly prohibited from disclosing customer content and the government must obtain a search warrant, based on probable cause, to compel a service provider to disclose the content of a customer's electronic communications to the government.

The bill also provides consumer privacy protections for location information that is collected, used, or stored by service providers, smartphones, or other mobile technologies. It will require that the government obtain either a search warrant, or a court order under the Foreign Intelligence Surveillance Act, in order to access or use an individual's smartphone or other electronic communications device to obtain geolocation information. Senator Leahy stated there are well-balanced exceptions to the warrant requirement if the government needs to obtain location information to address an immediate threat to safety or national security, or when there is user consent or a call for emergency services. The bill also requires that the government obtain a search warrant in order to obtain contemporaneous, real-time, location information from a provider. There is an exception to the warrant requirement for emergency calls for service.

To address the role of new technologies in the changing mission of law enforcement, the bill also provides new tools to law enforcement to fight crime. It clarifies the authority under the ECPA for the government to temporarily delay notifying an individual of that fact the fact that the government has accessed the contents of their electronic communications, to protect the integrity of a government investigation. The bill also gives new authority to the government to delay notification in order to protect national security.

The ECPA Amendments Act, according to Leahy, strengthens the tools available in ECPA to protect national security and the security of computer networks. It creates a new limited exception to the nondisclosure requirements under the ECPA, so that a service provider can voluntarily disclose content to the government that is pertinent to addressing a cyberattack. To protect privacy and civil liberties, the bill also requires that, among other things, the Attorney General and the Secretary of Homeland Security submit an annual report to Congress detailing the number of accounts from which their departments received voluntary disclosures under this new cybersecurity exception.

S 1011 defines the kinds of subscriber records that the Federal Bureau of Investigations may obtain from a provider in connection with a counterintelligence investigation. This reform will help to make the process for obtaining this information more certain and efficient for both the government and providers. The Electronic Communication Privacy Act must carefully balance the interests and needs of consumers, law enforcement, and our Nation's thriving technology sector.

H. R. 1841, the Data Accountability and Trust Act (DATA) of 2011, introduced May 11 by Representatives Cliff Stearns [R-FL-6] and Jim Matheson [D-UT-2] seeks to protect consumers by requiring reasonable security policies and procedures to protect computerized data containing personal information, and to provide for nationwide notice in the event of a security breach. This 17-page bill has been referred to the Committee on Energy and Commerce. If passed, it will seriously affect information brokers. Some investigative colleagues fear that investigators fall under this definition, even if they are not customarily viewed as being information brokers. ISPLA takes exception to that view, especially when one carefully reviews the Congressional intent and various specific provisions of the proposed bill. The following is the bills definition of an information broker.

INFORMATION BROKER- The term `information broker' means a commercial entity whose business is to collect, assemble, or maintain personal information concerning individuals who are not current or former customers of such entity in order to sell such information or provide access to such information to any nonaffiliated third party in exchange for consideration, whether such collection, assembly, or maintenance of personal information is performed by the information broker directly, or by contract or subcontract with any other entity.

LIMITATIONS- An information broker may limit the access to information required under subparagraph (B) in the following circumstances:

(I) If access of the individual to the information is limited by law or legally recognized privilege.
(II) If the information is used for a legitimate governmental or fraud prevention purpose that would be compromised by such access.

H.R. 1895, the Do Not Track Kids Act of 2011 a 32-page bill to amend the Childrens Online Privacy Protection Act of 1998 (COPPA) was introduced on May 13 by Representatives Edward J. Markey [D-MA-7] and Joe Barton [R-TX-6], Co-Chairman of the Bi-Partisan Congressional Privacy Caucus.

This bill will extend, enhance and update the provisions relating to the collection, use and disclosure of childrens personal information and establishes new protections for personal information of children and teens. Currently, COPPA covers children age 12 and younger, and it requires operators of commercial websites and online services directed to children 12 and younger to abide by various privacy safeguards as they collect, use, or disclose personal information about kids.

The Do Not Track Kids Act of 2011 strengthens privacy protections for children and teens by:
Requiring online companies to explain the types of personal information collected, how that information is used and disclosed, and the policies for collection of personal information.

Requiring online companies to obtain parental consent for collection of childrens personal information.

Prohibiting online companies from using personal information of children and teens for targeted marketing purposes.

Establishing a Digital Marketing Bill of Rights for Teens that limits the collection of personal information of teens, including geolocation information of children and teens.

Creating an Eraser Button for parents and children by requiring companies to permit users to eliminate publicly available personal information content when technologically feasible.
ISPLA notes through its state legislative tracking system that similar legislation was offered in California in February and recent amendments to that states bill have now stricken reference to children and made their proposed legislation applicable to all citizens of all ages of California. From our past dealings with the offices of both Markey and Barton, we find that they are very much in the camp of privacy advocates and that any legislation offered by them should be carefully scrutinized. Both congressmen are very influential on the House Energy and Commerce Committee, before which much privacy legislation reviewed.
Contributed by Bruce Hulme, ISPLA Director of Government Affairs.

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