| Press Release | Washington, D.C.

Today at the Senate Judiciary Committee’s hearing on reforming the Electronic Communications Privacy Act (ECPA), FTC Chief Counsel in the Office of Technology Research and investigations Daniel Salsburg testified about his concerns with the proposed reforms. He mentioned that his testimony was “his own” and not necessarily that of the FTC. Meanwhile, FTC Commissioner Julie Brill felt compelled to release a statement with different views.


On The Need For A Judicial Mechanism To Enable The FTC To Get A Court Order

FTC Chief Counsel Daniel Salsburg: “The Commission…suggests that Congress consider providing a judicial mechanism that would authorize the Commission to seek a court order directing the provider to produce the content if the Commission establishes it has sought to compel it directly from the target, but the target has failed to produce it.”

  • Commissioner Julie Brill: “[I] am concerned that a judicial mechanism for civil law enforcement agencies to obtain content from ECPA providers could entrench authority that has the potential to lead to invasions of individuals’ privacy and, under some circumstances, may be unconstitutional in practice.”

On The Ability Of The FTC To Do Its Job

Salsburg: “Although the Commission currently does not seek content of e-mails and other electronic communications covered by ECPA from ECPA service providers, we believe that in the future, as more electronic communication moves to the cloud, the effectiveness of our fraud prevention program may be hampered if proposed legislation is not appropriately modified.”

  • Commissioner Brill: “The Commission is highly effective in uncovering the identities and finding the locations of fraudsters and other targets by seeking basic identifying information under other provisions of ECPA. We are also very often successful in tracing the flow of ill-gotten money and locating assets that may be used for consumer redress through authority that is entirely separate from ECPA.”

On Whether The FTC Needs New Authority

Salsburg: “As a civil law enforcement agency, the FTC is concerned that recent proposals could impede its ability to obtain certain information from ECPA service providers in future cases.”

  • Commissioner Brill: “I am not convinced that this authority is necessary to maintain the Commission’s effectiveness as a law enforcement agency now or in cases that we can presently foresee.”