Digital Privacy in the Digital Age: The Future is Now

Remarks As Prepared For Delivery

Remarks Of Senator Patrick Leahy (D-Vt.),
Chairman, Senate Committee On The Judiciary,

21st Annual “Computers, Freedom & Privacy

Conference 2011 - The Future Is Now”

Georgetown University Law Center

Washington, DC

June 16, 2011


As Prepared For Delivery

Thank you, Marc [Rotenberg]. 

I commend Marc for the all of the great work he is doing as the President of the Electronic Privacy Information Center (EPIC).   He is also a former member of my staff and a part of the extended Leahy family.  

It is always great to be here at the Georgetown University Law Center.  I have many fond memories of my time here as a law student.   Of course, the law school looks a little different than it did back in my day, in the old red stone building.   But, Georgetown is still doing what it did during my time here -- nurturing a respect for the rule of law and for a free society.

I thank the Law Center for hosting the 21st Annual “Computers, Freedom & Privacy Conference.”   I also thank Lillie Coney, the conference chair, for inviting me to be here today.   

It is also wonderful to see so many tech industry leaders, policy makers and public interest advocates here to discuss how technology impacts our lives and freedoms in the digital age. 

The theme for this conference is “The Future is Now.”  Given the extraordinary advancements in technology that we witness today, I could not agree more. 

Nearly 50 years ago, in 1963, Chief Justice Earl Warren observed that “the fantastic advances in the field of electronic communications constitute a greater danger to the privacy of the individual.”


Of course, a lot has changed in the area of electronic communications since then.  But, Chief Justice Warren’s insightful words about the threats to our digital privacy still ring true today. 

In the digital age, we are witnessing truly fantastic advances in technology that make the Internet more open and free than ever before.  But, with the explosion of new technologies such as social networking sites, smartphones, and mobile applications, we also face threats to privacy as never before. 

Just in the past month, we have learned that smartphones and mobile applications may be collecting, using, and storing our location information, as well as a range of other sensitive information.  I am very concerned about this -- and I am not alone.  A recent survey commissioned by the privacy firm TRUSTe found that 38 percent of American smartphone users surveyed identified privacy as their number one concern about using their device. 

Recently, Google announced that the Gmail accounts of hundreds of its users, including senior U.S. Government officials, have been hacked in an apparent state-sponsored cyber-attack.  In the last few weeks, we have also witnessed major data breaches at Sony, Epsilon, RSA, the IMF, and Lockheed Martin -- just to name a few.

As our information society continues to thrive and grow, so do the threats to our digital privacy.  To chart a successful course into the future, we cannot afford to ignore these threats, or their impact on society.


Protecting Privacy in The Digital Age


As the Chairman of the Senate Judiciary Committee, I have been carefully examining these new threats to privacy to help determine how Congress can better protect privacy rights.  One conclusion that I have drawn is that we must modernize the legal framework for safeguarding privacy in the digital age. 

That is why I am working to update the Electronic Communications Privacy Act (ECPA), so that this key privacy law keeps pace with new technologies.   Last month, I introduced the Electronic Communications Privacy Act Amendments Act of 2011 -- a bill that would make the first comprehensive reforms to the ECPA since that law was enacted 25 years ago. 

When I first wrote the ECPA in 1986, no one could have imagined the kinds of technologies available to us today.  At that time, email was still a novelty, cell phones were as big as a shoebox, and the kinds of “mobile apps” that now put the Internet at our fingertips anywhere we go were not yet even dreams. 

Many of the assumptions that we made two decades ago about how Americans would use technology are no longer valid.  Today, most Americans use email and other modes of electronic communications as their primary form of communication, and they often store these communications on laptops, electronic communications devices and “in the cloud” for years.

The bill I have introduced would strengthen the privacy protections for email and other electronic communications by requiring that the Government obtain a search warrant, based on probable cause, to gain access to the content of electronic communications.   It would give consumers new privacy protections for their location information, by requiring that the Government obtain either a search warrant, or a court order under the Foreign Intelligence Surveillance Act, to gain access to location information that is stored on a device.  And it would require that the Government obtain a search warrant before it could track people in real-time, by obtaining location information from a service provider. 

Of course, updating ECPA will not be easy.  There are many interests -- including the important needs of the law enforcement community -- which we must carefully balance.  But, reforming this outdated privacy law is something that we can -- and must -- do to keep pace with changing technologies.  That is why I am committed to ECPA reform, and I need your help.

A Secure Future in Cyberspace


The explosion of new technologies also means that our information is more vulnerable to cyber-crime and other threats.  According to the Privacy Rights Clearinghouse, more than 533 million records have been involved in data security breaches since 2005.  

In my home state of Vermont, Norwich University’s Center for Counterterrorism and Cyber Crime is conducting innovative work to help counter the many threats to the nation’s cyber networks.  I am also working closely with others in Congress and with the Obama administration to develop a comprehensive national strategy for cybersecurity. 

Last week, I reintroduced the Personal Data Privacy and Security Act - a comprehensive data privacy bill which would establish a national standard for data breach notification and require that companies safeguard our sensitive personal information, so that data breaches do not occur in the first place.  

I have introduced this bill four times.  Each time I have done so, the threats to data privacy have been greater than the time before.  I am hoping the fourth time is a charm.

Many of the sound principles in my bill have been embraced by the President and his administration in their cybersecurity proposals.  I am pleased that Senators Schumer and Cardin, and Senator Franken - who chairs the new Subcommittee on Privacy, Technology and the Law which I created earlier this year, have cosponsored this bill.  In the past, the work to pass this bill has always been a strong bipartisan effort.  I hope that it will be so again this time. 

Next week, the Judiciary Committee will hold its first hearing on the administration’s cybersecurity proposals.  I look forward to working closely with the administration to enact meaningful cybersecurity legislation.

We simply cannot wait to act on comprehensive cybersecurity legislation.  But, we must proceed in a way that is respectful of our privacy rights and civil liberties.  I strongly believe that forfeiting privacy in the name of gaining greater security would result in a loss of both.

As the Congress continues to grapple with this pressing issue, I will be working hard to ensure that privacy and civil liberties are at the center of the legislative proposals in Congress aimed at enhancing cybersecurity. 

The Future is Now


I touched on several of these issues earlier this year when I spoke down the street at the Newseum about my agenda for the Judiciary Committee in this Congress.   As I said then, the last decade has encroached on Americans’ privacy as has no other decade in our history.  The imperative of security, the proliferation of data bases and the spawning of interactive social media have all combined to flatten Americans’ expectations about the right to privacy.

We must acknowledge this truth.  But, we must also not shrink from taking on the fight to uphold our fundamental rights in the face of this new reality.

In a free society – the society we always want America to be – our Government must not improperly intrude into our private lives.  But, with the advances in new technologies, ensuring the right to be left alone has become much more challenging. 

President Kennedy once said that “change is the law of life.  And those who look only to the past or present are certain to miss the future.”   All of us in this room, regardless of ideology or political party, have a vital stake in ensuring that the innovative changes in technology ushered in by the digital age do not diminish our rights and freedoms.  The decisions that we make today about the role of privacy in an information-based society will impact the rights and freedoms of Americans for years to come.   

Yes, “the future is now.”  And now is the time to bring our privacy laws fully into the digital age, so that the right to privacy is guaranteed for Americans now, and in future generations.   I will do my part and I hope that you will join me in this important effort. 

Thank you. 

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