Can the government access information stored on the cloud without a warrant? Under current law, the answer is a hard maybe.
Congress can quickly fix this uncertainty by passing the bipartisan International Communications Privacy Act (ICPA), updated in the Senate this month by Sen. Orrin Hatch (R-Utah) and Chris Coons (D-Del.). This law will strengthen privacy of email and other electronic data, all while respecting the data privacy laws of other countries.
To understand just how complicated current electronic privacy law is, look no further than the Microsoft v. United States case. The United States government cited the 1986 Electronic Communications Privacy Act (ECPA) as precedent to access Microsoft customers’ emails and other electronic communications because under that legislation, law enforcement can access any data older than 180 days. That law was passed in 1986, long before the cloud was even invented. Microsoft, which has a moral and legal obligation to respect all countries’ laws, took dispute with their interpretation of ECPA.
On July 14, 2016, the Second Circuit Court of Appeals also took issue with the government’s interpretation. Reversing the Southern District Court of New York’s opinion, the appeals court sided with the plaintiff, stating that the government cannot compel Microsoft, or any other company, to turn over foreign nationals’ emails stored on servers outside the United States. The ruling cast doubt on whether ECPA applies extraterritorially. However, uncertainty still persists since the DOJ promptly filed to reopen this case.
Congress can and should clear this up by passing ICPA, which will ensure that the government strikes the right balance between privacy rights and the needs of law enforcement and other agencies working to protect us from terrorism.
ICPA will require law enforcement agencies to respect the privacy laws of other countries. The legislation will simplify U.S. law regarding computer data within the United States and, when necessary, authorize U.S. law enforcement to obtain data relating to foreign nationals located outside the United States.
Perhaps most importantly, ICPA will reform the Mutual Legal Assistance Treaty (MLAT) to provide greater accessibility, transparency, and accountability. The legislation will also require the Attorney General to create an online docketing system for MLAT requests and to publish statistics on the number of such requests.
The importance of passing this legislation becomes even more clear when analyzing the empirical data surrounding terrorism, which overwhelmingly shows that becoming more selective on data collection is one of the best ways to protect our national security.
Studies show that the mass collection of e-mails has led to tens of thousands of false leads for every real hit, making locating terrorists the equivalent of finding a needle in a haystack. That’s why the Pulse nightclub shooter, Boston marathon bombers, and Garland shooters were all successful even though the CIA and FBI received an abundance of cautionary tips on the perpetrators’ possible intentions well in advance.
Before killing 50 innocent Americans, Omar Mateen had been questioned twice by the FBI after members of his local mosque reported him. Similarly, the CIA and FBI were cautioned about the Tsarnaev brothers years before the Boston Bombing, while the government did not act on the probable cause it had to investigate the shooters in Garland. The CIA and FBI were too overwhelmed with other leads to analyze the situation at hand, and we paid with American lives. Clearly, paying more attention to those that we, through the Fourth Amendment, have probable cause to investigate would be in everyone’s best interest.
Congress should not wait years before the court decides to act on this issue. The body should do its job and protect the American people by working to reform the law now. Passing ICPA would certainly be a great place to start.
Dean Chambers is a political commentator and former national pollster whose work has been featured on the Drudge Report and on The Rush Limbaugh Program, as well as parodied by Stephen Colbert, Chris Matthews, and Rachel Maddow.