The recent move by the Department of Justice to reopen a case against Microsoft illustrates the need for Congress to protect privacy rights of all Americans by passing International Communications Privacy Act (ICPA). Given the threat to privacy rights, enacting ICPA should be a priority for this session of Congress.
The case against Microsoft involved an attempt by Justice to obtain information stored on foreign located “cloud servers” without a warrant from law enforcement in the country where the server is hosted. Microsoft appealed this action and won, when the Court of Appeals for the 2nd Circuit in New York ruled against Justice. The court found that the Electronic Communications Privacy Act does not allow U.S. law enforcement to access electronic communications on servers hosted outside the United States. ICPA will balance the need of law enforcement to obtain such data with a court-approved warrant while protecting the key right of privacy of individuals and businesses storing data on overseas servers.
Imagine if law enforcement from another country asserted it could obtain electronic data from a server hosted in the United States without a warrant? Would some Americans view this as an act of war, or certain an outrage? Clearly we would not tolerate this, and we should not stand by this over-reach by our own government.
The chief sponsors of ICPA in the U.S. Senate, Chris Coons, D-Del., and Orrin Hatch, R-Utah, have written a letter to Justice regarding their move to reopen the case against Microsoft.
In that letter, the senators wrote, “ICPA clarifies when and how law enforcement can obtain electronic communications of U.S. citizens, no matter where the person or the communications are located. The bill also provides mechanisms by which U.S. law enforcement can — in limited circumstances and consistent with international law — obtain electronic communications of foreign citizens. We write to seek your continued engagement on this important issue and urge the Department of Justice to work with us in fine-tuning ICPA.”
Congress has within its means to pass this legislation and clarify this issue legally to protect privacy rights, by enacting the ICPA. This legislation will modernize the Electronic Communications Privacy Act by establishing a legal framework for accessing extraterritorial communications. It will balance the need of law enforcement to access data via a warrant while protecting the privacy rights of individuals and businesses. ICPA is also co-sponsored by Sen. Dean Heller, R-Nev.
“It is past time for Congress to modernize the outdated Electronic Communications Privacy Act. As we do so, lawmakers must not ignore the pressing issue of international data privacy and the need for Congress to establish a legal framework for accessing extraterritorial communications,” Hatch said in support of the ICPA legislation. “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.”
Coons, Hatch and Heller are great champions of the privacy rights of Americans, and by sponsoring ICPA they show that. They should also take the opportunity of the lame-duck session of Congress to put the bill on the agenda and urge the Senate an the House to pass it. Let this be a great accomplishment that President Obama can claim as well. This would be a great gift to the American people to quickly enact ICPA.
Congress can remedy the over-reach by Justice in the Microsoft case by enacting ICPA. For some members of this Congress who will not serve in the next Congress, passing this legislation would be a great accomplishment at the end of their term in office. Congress should act, in the public interest, in the coming weeks and pass this much needed reform of the Electronic Communications Privacy Act.
