After the 2nd U.S. Circuit Court of Appeals in New York rules on the issue, the fight over internet privacy over Microsoft emails stored in Ireland is likely to be headed to the U.S. Supreme Court. Regardless of how the 2nd Circuit rules, the issue will likely be appealed to the Supreme Court. Congress can easily make the issue moot in the courts, and settle the matter by passing the LEADS Act (Law Enforcement Access to Data Stored Abroad), sponsored by Sens. Orrin Hatch (R-UT), Chris Coons (D-DE), and Dean Heller (R-NV), to protect internet privacy. Otherwise, a possible Supreme Court ruling could determine if your email are protected by privacy rights.
The controversy is in the courts, and also in Congress with consideration of the LEADS Act, because the U.S. Department of Justice (DOJ) asserted authority to obtain access to data stored in Ireland on a “cloud” computer server by a subsidiary of Microsoft. The DOJ asserted authority to access the data without a warrant, and without going through the process of obtaining the information under the applicable laws of Ireland.
Microsoft fought the assertion of such authority by the DOJ, citing the Mutual Legal Assistance Treaty (MLAT) between the governments of Ireland and the United States. Whether or not the DOJ must abide by the MLAT will soon be decided by the 2nd Circuit court, and likely appealed to the Supreme Court. The privacy rights of all emails, both individual and corporate in nature, will be in the balance if the matter is decide ultimately by the Supreme Court.
“Currently, the U.S. government takes the position that it can compel a technology company to turn over data stored anywhere in the world, belonging to a citizen of any country, so long as the data can be accessed in the United States,” Sen. Hatch wrote in a statement on the LEADS Act.
The LEADS Act will protect internet privacy in a balanced way by allowing law enforcement to gain access to data stored on cloud servers via the process of the MLAT and obtaining a warrant or following the process required by the law of the country where the server is located. This will extend the same protections for non-digital data to that data stored on such cloud servers used by businesses and individuals that are hosted in many countries around the world.
“This is a pro-business, pro-innovation bill that will protect American privacy in the digital age and promote trust in U.S. technologies worldwide,” Sen. Hatch said about the LEADS Act, “While I agree in principle with the ECPA reform bills recently introduced in the House and Senate, neither establishes a framework for how the U.S. government can access data stored abroad. As Congress works to reform our domestic privacy laws, we must modernize the legal framework for government access to digital data stored around the world. This bill recognizes that these two issues are inextricably linked.”
Sen. Hatch stressed that privacy in electronic communications is important, and that enacting such reforms ECPA would insure privacy for Americans in the conduct of their daily lives, their work and businesses using email and other forms of electronic communication. The LEADS Act, which has bipartisan support in the Senate, Hatch says is the best way to address the need for privacy and law enforcement access to data.
Congress doesn’t have to, and should not, wait for the courts to settle this issue. Taking away the doubts and immediately protecting privacy rights would be good for individuals and businesses that use internet servers to communicate and store data. Congress should wait no longer before passing the LEADS Act and sending it to the White House for signing into law by President Obama. The LEADS Act will benefit all of us by upholding basic privacy on the internet.