Now Is The Time To Protect Americans’ Privacy Abroad

REUTERS/Mal Langsdon

Andrew Langer President, Institute for Liberty
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Relitigating old losses seems to be all the rage for Democrats these days.  Though we’re now nearly three weeks out from the presidential election, progressives are working overtime to try and undo the stunning loss that was handed to them at the polls.

Meanwhile, the US Department of Justice is trying a fourth-quarter “hail mary” to undo a decision that left them without the ability to secretly read through people’s emails.

In October, DOJ filed a petition to try and re-open a case that it previously lost—where they tried to get access to emails that were being stored on servers outside the United States.  As Congress contemplates substantive and vital things it can do for the American people before this session ends, it ought to consider passing the International Communications Privacy Act (ICPA).

To be clear, this is not some refuge whereby criminality can be hidden from the investigative arms of law enforcement simply because a company decides to store someone’s data outside of the nation in which they reside.  What this is about is government authorities trying to use loopholes in the law to get access to private information that they would otherwise have to use proper, rights-guaranteeing, procedures to collect.

The background is straightforward: the DOJ attempted to get data from Microsoft.  Although the data pertained to a US citizen, it was being stored on a server in Ireland.  The United States Department of Justice has no authority to issue warrants for data stored in a foreign country, and not only does Microsoft have no obligation to provide such data, the provision of such data could very well have violated the domestic laws of Ireland (and the European Union, which has very strong telecommunications privacy rules).

While a lower court tried forcing Microsoft to hand over such data under a Reagan-era telecommunications law, the Second Circuit Court of Appeals ruled over the summer that Microsoft was in the right—that the DOJ had no authority to gain such cross-border information.  Now the DOJ is readying for an appeal.

The time is overdue for Congress to step in and “right the ship.”  There is a rare opportunity for bipartisan cooperation in order to solve a pressing problem. This bipartisan cooperation can create a solution that helps to ensure individual privacy rather than violate it.

Sen. Orrin Hath (R-UT) and Sen. Chris Coons (D-DE) are co-sponsors of a new bill, the International Communications Privacy Act (ICPA). ICPA clarifies the powers of US law enforcement with regards to how they gain access to Americans’ electronic information when that information crosses US borders.

As Sen. Hatch said when the bill was introduced, “The global reach of government warrant authority has significant implications for multinational businesses and their customers. The International Communications Privacy Act aids law enforcement while safeguarding consumer privacy, striking a much-needed balance in today’s data-driven economy.”

ICPA reiterates that law enforcement must obtain a warrant. For all content, not just items in the United States that are less than 180 days old. It creates a clear legal framework for obtaining such information outside of the United States and sets out how to obtain necessary content from non-US citizens.  It also creates a structure for greater transparency and accountability in how the US works with other governments in accessing individuals’ private electronic data in ongoing law enforcement investigations.

The bottom line here is simple:  Americans would be outraged if a foreign government forced a company to hand over our data, simply on the justification that the data wasn’t being stored within that nation’s borders. The same would holds true if we did the same — after all, the United States has started wars over less. Now is the perfect time to pass ICPA—it’s bipartisan, it protects privacy, and it ought to be a relatively “easy lift” during the lame duck. Congress just needs to take the next step and actually pass it.

Andrew Langer is President of the Institute for Liberty