The ICPA bill will clearly establish the modern guidelines needed to navigate the ever-changing technological world, and Congress should make every effort to pass it before President Obama leaves office
Lame Duck Congress Should Stand for Privacy Rights
As America begins the peaceful transition of power from President Obama to President-elect Trump, we have the opportunity to reevaluate the direction and focus of our country. But during the next two months, the retained Republican majority in both Houses of Congress has the chance to be more than just a lame-duck Congress waiting for January to roll around.
As America begins the peaceful transition of power from President Obama to President-elect Trump, we have the opportunity to reevaluate the direction and focus of our country. But during the next two months, the retained Republican majority in both Houses of Congress has the chance to be more than just a lame-duck Congress waiting for January to roll around.
The avowed constitutionalists in office have the opportunity to work with President Obama -- a so-called champion of privacy rights -- and help him to somewhat redeem his reputation as a champion of the Fourth Amendment before he leaves office. That's why the time is now to pass the International Communications Privacy Act (ICPA) -- to prove that constitutional Republicans and progressive Democrats can indeed work together, even when Republicans control both the executive and legislative branches.
Last July, the Second Circuit Court of Appeals in New York issued a decision that overturned the ruling in the Microsoft v. United States case regarding private email correspondence. In response, the Department of Justice (DoJ) recently filed a petition in an attempt to re-open the case in which judges previously ruled that Microsoft cannot be forced into turn over user data stored outside of the United States to the US government.
A U.S. search warrant had been issued against Microsoft to force the company to release account data belonging to a foreign individual that is the subject of an investigation by U.S. law enforcement.
Certainly, the U.S. would never tolerate another country taking property within our borders without our consent. Why, then, does the government feel that it has the ability to ask for this data?
In short, it believes that the outdated Electronic Communications Privacy Act (ECPA) can be used as a Fourth Amendment loophole. ECPA creates an artificial expiration date on any form of electronic correspondence that is older than 180 days, allowing the DoJ to "legally"confiscate it after that time.
ECPA was enacted in 1986, years before emails and the internet existed. It is based on technology practices that have gone the way of the dinosaurs. We are in the 21st century now, and it is now clear as day that this outdated legislation should be repealed.
Another point of contention with the DoJ's request is that the data in question is not located in the U.S -- it is stored in Dublin, Ireland. Like all other countries, Ireland is responsible for making its own decisions regarding businesses within their borders. It is not under U.S. jurisdiction, and it is foolish for the United States to pretend that it is.
Overthrowing the July decision will severely weaken the Fourth Amendment, allowing the DoJ to continue with its excessive overreach years down the road. This may result in giving the DoJ the power to conduct investigations domestically and internationally without obtaining a warrant.
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Fortunately, stalwart defenders of privacy rights, Senators Orrin Hatch (R-UT), Chris # (D-De) and Dean Heller (R-NV) have introduced theInternational Communications Privacy Act (ICPA) in an effort to stop this from becoming a reality.
This new legislation seeks to close the loopholes currently threatening our privacy while still allowing law enforcement to do their job. ICPA will update the wording of ECPA to reflect the state of current technology. The legislation will preserve the privacy rights of Americans by differentiating between search warrants for data held abroad for U.S. citizens as opposed to foreign citizens.
The ICPA co-sponsors state in a letter sent to Attorney General Loretta Lynch that "when technology companies receive demands from U.S. law enforcement to turn over data on behalf of foreign customers, they are forced to make a difficult decision: either comply with the demand and satisfy U.S. law and risk violating the privacy laws of the host country, or challenge U.S. law enforcement's request in order to comply with the laws of the host jurisdiction."
The laws on the books should not put companies in such a difficult, no-win position. ICPA has the ability to fix all this by preventing the DoJ's temper tantrum from going any further, while also laying the groundwork for future policies that will undoubtedly need continual updating as new technology is developed and data use grows.
The U.S. should not assume an automatic right to access data in other countries. Doing this sets a dangerous precedent that will lead other countries to assume that they, too, can access data or other property within our borders - something we would never tolerate. The ICPA bill will clearly establish the modern guidelines needed to navigate the ever-changing technological world, and Congress should make every effort to pass it before President Obama leaves office.
Megan Barth, is co-chair of RedWave America PAC and The Media Equality Project. She serves as national spokeswoman for MediaEqualizer.com, the leading online watchdog for the intersection of Media, Technology and Government. .
