Law Enforcement Access to Data Abroad May Head to High Court

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By George R. Lynch and Daniel R. Stoller

The government’s decision to keep pursuing Microsoft Corp. in court to release customer emails stored overseas highlights the uncertainty facing U.S. technology and communications companies, privacy attorneys tell Bloomberg BNA.

The Department of Justice June 23 requested that the U.S. Supreme Court review of the U.S. Court of Appeals for the Second Circuit’s ruling that Microsoft need not turn over emails stored in Ireland to law enforcement. Tech companies, such as Alphabet Inc.'s Google and Yahoo! Inc., routinely receive such law enforcement requests for user data ( United States v. Microsoft Corp. , U.S., No. 16A972, cert. filed 6/23/17 ).

Companies that store data overseas often find themselves in the position of either violating U.S. law or the law of a foreign country. The uncertainty could be addressed by either the Supreme Court or Congress.

For companies, the precarious environment is a product of the need to “move vast stores of electronic data across international borders, evolving privacy expectations, the legitimate needs of law enforcement, and a failure by Congress to step in and update a hopelessly outdated law,” Craig A. Newman, chair of its privacy and data security practice at Patterson Belknap Webb & Tyler LLP in New York, told Bloomberg BNA.

The tech sector, bipartisan lawmakers, and law enforcement agencies agree that Congress should move to update the 30-year-old email privacy law, the Electronic Communications Privacy Act (ECPA), and its subset Stored Communications Act (SCA).

Brad Smith, Microsoft’s president and chief legal officer, said July 23 in a blog that it “seems backward” for the government “to keep arguing in court when there is positive momentum in Congress toward better law for everyone.”

Jennifer Daskal, assistant professor of law at American University Washington College of Law, told Bloomberg BNA that the seeking review in the absence of a split of opinion among federal appeals courts “highlights the importance of the issue, but is not the right way to resolve” the law-enforcement-access-versus-privacy issue. “If anything, this decision to seek Supreme Court review ought to spur Congress to act,” she said.

DOJ didn’t respond to Bloomberg BNA requests for comment on the Supreme Court petition seeking review of the Microsoft v. Uniited States ruling.

Google Joins Legislative Battle

Alphabet Inc.'s Google recently added its voice to the mix, releasing a policy framework proposal on reforming law enforcement access to data stored overseas at a Heritage Foundation event in Washington, D.C.

Kent Walker, Google’s senior vice president and general counsel, said in a blog post that the framework would aim to have countries that commit to baseline privacy, human rights, and due process principles be able to “gather evidence more quickly and efficiently.”

The problem is one that needs to be solved by Congress, Chris Calabrese, vice president for policy at the privacy advocacy group the Center for Democracy and Technology, told Bloomberg BNA.. “I understand DOJ wants to litigate the issue, but the reality is these are complicated important policy issues that need top be addressed by legislative changes,” not the Supreme Court, he said.

Daskal said that having a Google vice president travel to Washington to unveil the proposal shows the importance of the issue.

Calabrese said that having a company of Google’s size “focusing on what seems to a lot of people like an esoteric problem shows it’s starting to become major problem around the world and something we really need to address.”

Consensus Forming

“We’ve been vocal supporters for the ideas in Google’s framework. Their proposal makes an important and positive contribution and shows strong consensus on the urgency for new law and what that law should look like,” Microsoft’s Smith told Bloomberg BNA.

Steven Wasserman, vice president for policy of the National Association of Assistant United States Attorneys, told Bloomberg BNA that “NAAUSA is encouraged that Google recognizes the need to update ECPA to enable law enforcement to address the technological challenges to collecting evidence located overseas.”

A DOJ spokesman told Bloomberg BNA that the agency appreciates Google’s position that “bilateral agreements authorized by the ECPA legislation proposed by the DOJ provide the most promising avenue to appreciably improve global privacy standards” and allow governments to share data for law enforcement investigations.

Daskal said that Google’s proposal reflects an emerging consensus among prominent stakeholders that keeping the situation unchanged is the problem, and Congress needs to step up to change the legal landscape.

There is consensus that countries meeting basic human rights and due process standards should be able to make direct requests to U.S. companies for data, and that the result from Microsoft v. United States is unsustainable, she said.

To contact the reporter on this story: Daniel R. Stoller in Washington at dStoller@bna.com; George R. Lynch in Washington at glynch@bna.com

To contact the editor responsible for this story: Donald Aplin at daplin@bna.com

For More Information

The DOJ petition for review is available at http://src.bna.com/qgt.

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