There is a growing coalition of companies and groups across the political spectrum advocating for ECPA reform. And members of Congress, including Sens. Patrick Leahy (D-Vt.) and Ron Wyden (D-Ore.) and Reps. Jerrold Nadler (D-N.Y.) and John Conyers (D-Mich.), have introduced ECPA related bills.
Senator Leahy, the author of ECPA, will try to move an amended version of the ECPA reform bill he introduced earlier this year, before Congress adjourns for the election. But most likely this issue will get pushed into next year and end up before a new Congress, where it should be resolved once and for all.
The U.S. and Turkey are the only developed countries without comprehensive laws protecting consumer privacy. Instead, the U.S. has a patchwork of inconsistent, sector-specific (banking, insurance, health care, etc.) laws protecting certain categories of especially sensitive data. Everything else is left to self-restraint, voluntary industry privacy codes and the power of the Federal Trade Commission to take on unfair and deceptive business practices. In the last few years, the FTC has muscled up its oversight and enforcement actions, but the agency is constrained by its regulatory limits.
Survey results from first annual "web census," released in June, show that all top 100 websites installed tracking technology ("cookies") on each visitor's computer. Twenty-one of those top 100 sites placed 100 or more cookies on each computer; six placed more than 150.
The opportunity for abuse of consumer privacy is growing every day. There are tens of thousands of apps downloaded on smartphones and tablets, increasing use of facial recognition technology, license plate scanners and flying drones equipped with cameras. Each of these areas presents a special privacy challenge.
Congress has been dragging its feet on a baseline consumer privacy law for over a decade. For awhile it looked like the current Congress might get to the finish line, The Administration unveiled a "Privacy Bill of Rights" for consumers online, but the momentum faded as Washington got bogged down in election year politics. It's an odds-on bet that the issue will resurface during the next Administration. The challenge is for lawmakers to stay focused on passing a flexible, comprehensive privacy framework that allows for innovation and meets the challenges of an increasingly complex data environment.
It's easy for Congress to simply throw privacy under the bus in an anti-regulatory furor, or to gravitate toward small fixes that are sure political wins. We have done this before. Hopefully, next year we will avoid that fate and get a meaningful law in place.
The opposition to and eventual defeat of the SOPA/PIPA legislation was a defining moment for Internet activism. The battle has even managed to insert itself into the popular lexicon, with "SOPA/PIPA" making a recent appearance as part of an answer during the game show "Jeopardy." The public outcry effectively killed these bills, but the issue of "online piracy" is not going away.
The challenge will be finding strategies to reduce infringement without crippling the core values of the Internet: openness, innovation and free expression. Finding the right balance will require an inclusive policymaking process that involves not just content owners, but Internet users, companies and innovation interests as well.