Senate Discusses Solutions to Problem of Accessing Overseas Data

    Jun 13, 2017

    According to FCW.com, Congress is considering changes to the law to address how law enforcement can access data that U.S. companies store overseas.

    The action is perhaps prompted by last summer’s ruling, tendered by the U.S. Court of Appeals for the Second Circuit, that Microsoft did not have to release data on its Ireland servers that was sought by U.S. law enforcement officials.

    Before any laws can be changed, there are complications to address. For one, what happens when data is stored in a country that has laws preventing disclosure? For example, if a Google or a Facebook complies with a U.S. warrant, it could violate another country’s laws and face severe fines.

    At a May 24 hearing, senators wrestled with this issue and others that such legislation might bring.

    According to the article, Brad Wiegmann of the Department of Justice told senators the solution is to return to the status quo before the Second Circuit ruling and therefore develop bilateral agreements with other countries to create frameworks for sharing data in law enforcement cases.

    "We have explored how such an agreement would work with our partners in the U.K., and if the approach proves successful, we would consider it for other like-minded governments who respect the rule of law," Wiegmann said.

    He said in his prepared testimony that the Wiretap Act, the Stored Communications Act, and the Pen Register Statute would have to be amended to support such a policy shift.

    Brad Smith, Microsoft's president and chief legal officer, testified that bilateral agreements would solve the problem of foreign countries requesting data from the U.S., but he said simply returning to the pre-Second Circuit status quo does not adequately address cases where foreign laws prevent disclosure of data.

    "These conflicts put technology companies in the impossible position of deciding whose law they will break," Smith said.

    He noted that next year the EU would implement data privacy regulations that impose significant fines on companies that disclose data held in the EU. He also claimed that Wiegmann’s proposal seeks to create an international framework for the exchange of data, but the DOJ still wants to use unilateral, extraterritorial warrants.

    "Countries that fear U.S. unilateral law enforcement action will seek to protect their citizens and their local service providers by localizing cloud services and data storage – to the disadvantage of U.S. providers and U.S. law enforcement," he stated in his testimony. "Instead the U.S. needs to consider the same framework for itself and demonstrate respect for borders and reciprocity with allies and friendly nations. This isn't simple, but it's achievable."

    Last year, Sen. Orrin Hatch (R-Utah) filed the International Communications Privacy Act (ICPA) in the hopes of solving the overseas data riddle, but the legislation stalled. He’s preparing to file a revised version.

    "My bill incorporates feedback from both law enforcement and privacy groups and is grounded on three principles: respect for other countries and their laws, international comity and reciprocity," said Hatch during a recent floor speech.

    The focus would be on the location of the suspect. If that person is a U.S. citizen or located in the U.S., "then law enforcement may compel disclosure, no matter where the data is stored, provided the data is accessible from a U.S. computer and law enforcement uses proper criminal process."

    "We believe ICPA is a solid foundation for a legislative framework," Microsoft's Smith testified.

    The Washington Policy Brief is an online advisory that contains brief summaries of recent legislative and regulatory issues that may affect the records and information management profession. Further information about the issue is accessed by clicking on the link provided at the end of each summary.


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