Tomorrow the Senate Judiciary Committee is going to take up two privacy proposals by Sen. Patrick Leahy (D-Vt.), who aims to update laws from the 1980s for the Internet era.
One calls for revising a law protecting the privacy of movie-rental records in order to allow for a Netflix-Facebook integration. The federal Video Privacy Protection Act bans movie rental companies from sharing information about the videos people watch without their express written consent. Many observers believe that consent must be obtained on a movie-by-movie basis.
Leahy's amendment would spell out that people can consent in advance to the disclosure of information about the movies they watch. Netflix has been lobbying for that revision for a long time, arguing that it needs the change in order to enable people to stream films from their Facebook accounts. Netflix and Facebook also want to spread the titles of movies people watch to their social contacts.
But some privacy experts question whether the change is needed. University of Minnesota law professor Bill McGeveran testified to a Senate panel in January that Netflix could simply offer Facebook users a “play and share” button. If users click on that button, the company could then spread information about users' movie selections to their friends on a per-occasion basis.
The digital rights group Electronic Frontier Foundation has sharp words for the proposal, saying it "undermines one of the strongest consumer privacy protections we now enjoy."
Congress enacted the VPPA after a Washington newspaper obtained the video rental records of Robert Bork, who was nominated to serve on the U.S. Supreme Court.
Leahy's other amendment is looked on more favorably by privacy advocates. That proposal, a revision to the 1986 Electronic Communications Privacy Act, would require government officials to obtain a search warrant for all emails, not merely those in storage for less than 180 days.
Currently, law enforcement authorities can obtain emails older than six months with nothing more than a subpoena. To obtain one, prosecutors need only show that the account might yield information that's relevant to an investigation -- a relatively easy standard to meet.
Search warrants are much harder to get than subpoenas, because judges aren't supposed to sign search warrants without probable cause to believe the material sought will yield evidence of a crime.
Leahy's amendment to ECPA also would require that law enforcement personnel get search warrants before accessing material stored in the cloud.