The Association of Research Libraries (ARL) applauds the approval of the Email Privacy Act by the US House of Representatives. The House passed the bill with a voice vote, moving this critical piece of legislation one step toward ensuring that the outdated Electronic Communications Privacy Act (ECPA) is reformed to keep pace with the digital age. The House previously passed the Email Privacy Act in a unanimous vote during the last Congress.
House passage of the Email Privacy Act signals an important recognition that Fourth Amendment protections extend to online communications. As libraries and universities move services into the cloud and more communications take place online, ensuring the protection of information long considered to be private—including what individuals are reading or researching—is essential.
ARL has long supported reform of ECPA to ensure that the Fourth Amendment applies to digital communications and urges the Senate to quickly move forward to pass this bill.
On September 13, 2016, ARL joined in a coalition letter of 33 organizations expressing concerns regarding congressional oversight of intelligence activities. The letter calls on Congress “to provide a meaningful check on the executive branch and reform how it conducts oversight over intelligence matters.” The letter calls for a number of reforms to the House Permanent Select Committee on Intelligence and to strengthen Congressional power, including to provide members with sufficient staff assistance.
The letter concludes:
In addition to the above reforms, we urge you to consider establishing a distinct, broad-based review of the activities of the Intelligence Community since 9/11, modeled after the 9/11 Commission or the U.S. Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities.
When questions were raised about the activities of the intelligence community in the 1970s, Congress reacted by forming two special committees, colloquially known as the Pike and Church committees. Reports preceded wholesale reforms of the intelligence community, including improving congressional-oversight mechanisms. The outcome improved congressional oversight and the perception of its efficacy. The House should provide the new select committee adequate staffing and financial support, and give it a broad mandate to review practices and structures associated with congressional oversight of intelligence matters.
On May 24, 2016, ARL joined a coalition of civil society organizations, companies and trade associations in a letter to Senate Judiciary Committee Chairman Grassley and Ranking Member Leahy supporting the Email Privacy Act (H.R. 699) as passed unanimously by the House of Representatives on April 26, 2016. While the House-passed bill did not make all necessary reforms to the Electronic Communications Privacy Act (ECPA), it represents a big step forward by imposing a warrant-for-content rule. Importantly, the H.R. 699 did not include a civil agency carveout, ensuring that civil agencies do not have warrantless access to online communications such as e-mails or documents stored in the cloud.
The Electronic Communications Privacy Act (ECPA) is a law from 1986 governing privacy for online communications and has long been in need of reform. ECPA was written in an era in which few individuals owned computers, most did not use e-mail, services like Facebook did not exist, and “the cloud” had not yet transformed the way people communicate and work. It reflects a poor understanding of the digital age and has clearly not kept pace with evolving technologies. ECPA allows the government to seize online documents and communications older than 180 days without a warrant, leading to an absurdity that grants greater protection to hard copy documents than to digital communication. Essentially, ECPA reform seeks to ensure that the 4th Amendment applies equally to the digital age as it does to the analog world, requiring a warrant for the content of documents and communications.
Civil agencies, primarily the Securities and Exchange Commission (SEC), have repeatedly sought an exemption from the ECPA reforms and continue to do so as the Senate Judiciary Committee considers a vote. These agencies would like to compel third-party providers to disclose the content of personal communications without a warrant, increasing their power beyond the existing tools they have at their disposal such as subpoenas. Such an exemption threatens the reasonable expectation of privacy.
In addition to civil agencies seeking carveouts, law enforcement officials would like to broaden the emergency exceptions language in the ECPA reform bill despite the fact that current law already permits service providers to release information where there is an emergency involving the danger of death or serious physical injury. Expansion of existing law in this area could be subject to abuse by government and law enforcement agencies who may try to overreach to access data.
ECPA is in serious need of reform and the Email Privacy Act passed last month by the House of Representatives–without modification or amendment–represents the appropriate vehicle to move reform forward.
The Association of Research Libraries (ARL) applauds today’s 419-0 vote in the US House of Representatives passing the Email Privacy Act (H.R. 699), a bill that updates the Electronic Communications Privacy Act (ECPA). Passed in 1986, ECPA has not kept pace with evolving technologies and has led to an absurdity that affords greater protection to hard-copy documents than digital communications.
House passage of the Email Privacy Act today signals an important recognition that Fourth Amendment protections extend to online communications. As libraries and universities move services into the cloud and more communications take place online, ensuring the protection of information long considered to be private—including what individuals are reading or researching—is essential.
“Reform of ECPA is long overdue and today’s vote in the US House of Representatives demonstrates overwhelming support for bringing privacy laws in line with the digital age,” said ARL president Larry Alford. “The Email Privacy Act will restore a reasonable expectation of privacy in online communications, requiring the government to obtain a warrant for content, and is a key step forward in updating a 30-year-old law governing digital privacy. ARL applauds today’s vote and urges the Senate to quickly move forward to pass this bill.”
ARL, together with fifteen other organizations including library associations, blind and disability groups, authorized entities and non-profit advocacy organizations, joined a statement supporting rapid ratification of the Marrakesh Treaty. The Obama Administration sent the Marrakesh Treaty to the Senate on February 10, 2016 and the letter calls on the Senate to ratify the Treaty and for the House and Senate to pass the Marrakesh Implementation Act. The Treaty provides minimum standards for limitations and exceptions to create and distribute accessible formats for the print disabled and allows for the cross-border exchange of these formats.
The statement notes:
We believe the Treaty is consistent with United States law and could be ratified without any changes to existing statutes or regulations.
Notwithstanding this view, we are prepared to support the legislative package as proposed by the Administration because it makes minimal changes to the law and its consideration would, we trust, facilitate early Senate consent to ratification. We are confident that the focused and narrow changes that have been proposed are enough to satisfy the terms of the Marrakesh Treaty. We believe any effort to make any other changes in US law, beyond those proposed by the Administration, would unnecessarily delay and jeopardize the ratification of this treaty. Blind and otherwise print disabled Americans have waited far too long for equal access to printed materials.
We call upon the Senate to consent to ratification without any reservations, understandings or declarations. We further encourage Congress to hold hearings expeditiously and to enact the implementing legislation along with the suggested legislative history as currently drafted, without delay. If the Treaty is ratified and the legislation adopted, the blind and otherwise print disabled of our nation will benefit greatly by having access to the rest of the world’s accessible book collection and the blind and otherwise print disabled of the world will advance their quest for greater information through access to books in the United States.
Copyright continues to be an active area with a number of developments since October. The House Judiciary Committee continues to move forward with its copyright review and is close to completing its schedule of meetings between House Judiciary majority and minority staffers and witnesses who testified at hearings during the course of the review. In early 2016, members of the House Judiciary Committee will determine what issues they may want to work on with respect to possible reform. Additionally, Representatives Marino, Chu and Comstock introduced their bill on Copyright Office modernization, which would move the Copyright Office out of the Library of Congress and establish it as an independent agency within the legislative branch. On October 16, 2015, the Court of Appeals for the Second Circuit released its long awaited opinion in Authors Guild v. Google, strongly affirming fair use. Also in October, the Library of Congress released its final rules for the current cycle of the Digital Millennium Copyright Act’s (DMCA) Section 1201 rulemaking. Finally, the Library Copyright Alliance (LCA) filed comments responding to the Copyright Office’s Notice of Inquiry regarding a proposed pilot program for mass digitization and extended collective licensing. These comments questioned the wisdom of such a pilot program.
The US Congress passed the omnibus appropriations bill for FY 2016 and avoided a government shutdown. The omnibus exceeded mandatory caps on discretionary funding, resulting in positive results for higher education and libraries.
The Department of Education issued a proposal to amend regulations and require that all Department grantees awarded direct competitive grant funds openly license all copyrightable intellectual property created with these funds. ARL submitted comments supporting the benefits of open licensing and encouraging continued dialog.
ARL joined in comments on the proposed revision to OMB Circular A-130, the Circular that provides the rules of the road for federal information management and information technology.
The DC Circuit heard oral arguments on net neutrality in December. Although threats regarding a rider to undermine the FCC’s ability enforce its net neutrality rules emerged during the omnibus appropriations process, this rider was ultimately not included.
Congress continues to consider reform of the Electronic Communications Privacy Act (ECPA), and there is widespread support in the House for such reform. The Cybersecurity Information Sharing Act of 2015 was altered in ways that raise greater privacy concerns than its original version and was passed in the omnibus appropriations bill.
The US Supreme Court heard oral arguments in Fisher v. University of Texas at Austin (Fisher II), a case involving the University of Texas (UT) admissions process, which seeks to improve student body diversity.
Finally on the international front, more countries have ratified the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who are Blind, Visually Impaired or Otherwise Print Disabled, moving the Treaty closer to entry into force. The negotiations of the TransPacific Partnership Agreement (TPP) have now been finalized and the texts are now public, but the agreement must still be signed and passed by each of the negotiating parties.
On October 27, 2015, the U.S. Senate voted 74-21 to pass the flawed Cyberinformation Sharing Act (CISA), a slightly modified version from the bill that passed the House of Representatives earlier this year. CISA, which purports to protect against data breaches, actually raises serious privacy concerns. In passing CISA, the Senate unfortunately voted against a number of proposed amendments which would have strengthened user privacy.
Among other concerns, CISA will allow companies to expand monitoring of their users’ online activities and permits sharing of vaguely defined cybersecurity threats without adequate privacy safeguards. It authorizes law enforcement that goes far beyond the scope of cybersecurity.
The Senate and House will now need to conference to resolve the differences between the two versions that passed.
On September 30, 2015, the Re:Create Coalition released a letter supporting modernization of the Copyright Office while opposing the establishment of the Copyright Office as an independent agency (as suggested in a discussion draft bill by Representatives Chu (D-CA) and Marino (R-PA)). It points out that while some have claimed that consensus exists to make the Copyright Office an independent agency, no such consensus exists.
The letter notes that while modernization is needed, creating an independent Copyright Office will not solve the information technology challenges the office faces. Additionally, the letter states:
In this digital age, we agree there is a clear need to upgrade and modernize the Copyright Office and view the upcoming appointment of a new Librarian of Congress for the first time in three decades as an opportunity for just such potentially transformative change. We believe that reforms both to improve the process of registering copyrights and to improve the transparency and accessibility of this information to the public are crucial. Additionally, while Re:Create members have diverse views as to the appropriate home for the Copyright Office, we are united in our belief that the case has not been made for transforming the Copyright Office into an independent agency.
The letter also calls for the Copyright Office to be more responsive to the public, pointing out that:
A thoroughly modern Copyright Office will be one able to carefully weigh the interests of rights-holders, the rapidly evolving creative market, and the greater public of information users and consumers (often creators themselves), with an eye toward finding the appropriate balance to foster more, rather than less, speech. For example, in the context of the Digital Millennium Copyright Act (DMCA) rulemaking, a more thorough and balanced assessment of the public’s reliance on exemptions for cell phone unlocking or access to works for the blind and print-disabled could have altered the Office’s ultimately countermanded recommendations to eliminate those exemptions. In the case of cell phone unlocking, a fuller consideration of the needs of the public during the rulemaking process may even have prevented the need for Congress to step in to protect consumers’ ability to use the devices they own on the network of their choice.
The summary and contents from the current Advocacy and Policy Update are reproduced below:
The US House of Representatives began the summer recess on July 30th, and the US Senate adjourned on August 6th with both reconvening on September 8th. September and October promise to be very busy months as both chambers must act on the FY 2017 appropriations bills, highway trust fund, debt ceiling, and many other issues. It is also hoped that there will be a deal to increase the spending limits under sequestration, which higher education institutions and others have long advocated for.
Much of the activity related to copyright has centered around the Copyright Office. Congressional offices continue to explore and discuss ways to modernize the Copyright Office, including various proposals to move the Copyright Office out of the Library of Congress. Additionally, the Copyright Office has issued notices of inquiries that relate to orphan works, mass digitization, visual works, and extended collective licensing.
There have been positive developments with respect to open access, open educational resources, and open data. The Obama Administration released science and technology priorities for FY 2017, which note that “preserving and improving access to scientific collections, research data, other results of federally funded research, open datasets and open education resources should be a priority for agencies.” The FASTR Bill to enhance public access to research was approved unanimously by the US Senate Committee on Homeland Security and Governmental Affairs.
Privacy and surveillance concerns continue as Congress is considering cybersecurity legislation that raises serious issues for privacy and civil liberties. Litigation around net neutrality is in full swing, with the briefs of telecommunications companies opposing the FCC’s net neutrality rules filed in July.
Finally, ARL continues to promote a simple and quick ratification of the Marrakesh Treaty. Currently, 10 countries have ratified the Treaty, and 10 more are needed for it to enter into force.
Copyright and Intellectual Property
Proposal to “Modernize” the Copyright Office
Copyright Office Notice of Inquiry on Visual Works
Copyright Office Notice of Inquiry on Mass Digitization and Extended Collective Licensing
House Judiciary Committee’s Copyright Review
Open Access, Open Educational Resources, and Open Data
Obama Administration Releases Science and Technological Priorities for FY 2017
Coalition Calls on White House to Open Up Access to Federally Funded Educational Resources
FASTR Bill to Enhance Public Access to Research Approved by US Senate Committee
On June 23, 2015, the U.S. Senate cleared the procedural hurdle of attaining 60 votes on a motion for cloture to move ahead with a vote on Trade Promotion Authority (TPA), also known as “fast-track” legislation. Under “fast-track,” Congress grants the President the authority to sign trade agreements and Congress can only approve or reject these agreements in a straight up-down vote, meaning that it must take the agreement as a complete package and cannot amend the agreement. As noted in a February 5, 2015 letter from the Library Copyright Alliance (LCA), fast-track authority limits Congress’ ability to meaningfully weigh in on an agreement, particularly given the lack of transparency in trade negotiations. Notably, no trade agreement presented to Congress under fast-track legislation has ever been rejected. TPA has been seen as critical in concluding negotiations of the Trans-Pacific Partnership Agreement (TPP), a large regional trade agreement that currently has twelve negotiating parties.
Today, the Senate voted 60-37 to proceed with a vote on TPA. While the Senate had passed TPA in an earlier vote in May, that bill packaged fast-track legislation with Trade Adjustment Assistance (TAA), legislation that reduces the negative impacts of imports on certain sectors in the U.S. On June 12, 2015, the House of Representatives took separate votes on TPA and TAA, voting to pass the TPA portion of the bundled package by a vote of 219-211 but rejecting TAA by 302 to 126. The House then voted to separate the package and passed TPA in a standalone bill on June 18, with the intention of scheduling a vote on TAA at a later date. Because the Senate had packaged TPA and TAA, the TPA went back to the Senate. Although some critics expressed concerns over the separation of the two bills and suggested that TPA could not pass without TAA, the Senate reached its 60 vote threshold to move ahead with the vote which will likely occur later this week.