- - Wednesday, February 18, 2015

After decades of slumber, Congress has awakened to the need to update the Electronic Communications Privacy Act of 1986 (EPCA), enacted in the “horse and buggy” stage of the Digital Age. The proposed legislation — the Law Enforcement Access to Data Stored Abroad Act (LEADS) — seeks to juggle a host of competing interests: individual privacy; international comity; criminal law enforcement; and, the imperatives of globalized electronic storage, retrieval, and transmission operations.

Despite its imperfections, LEADS strengthens privacy protections for data about U.S. persons stored abroad. It is a constructive starting point for modernizing privacy law in a globalized environment.

But before examining the legislative details, a few pages of history will be informative.

The law is typically backward-looking and is chronically outfoxed of confounded by technological advances.

Nowhere has this axiom proven more true than in the field of communications technology.

The U.S. Supreme Court badly stumbled in its maiden encounter with wiretapping in Olmstead v. United States (1928). It held that the government’s indiscriminate interceptions of telephone conversations were outside the protection of the Fourth Amendment. Chief Justice William Howard Taft, speaking for the majority, woodenly relied on the amendment’s textual limitation to “persons, houses, papers, and effects” drafted a century before the invention of the telephone. As St. Paul sermonized, “the letter killeth, but the spirit giveth life.” Almost four decades elapsed before the Supreme Court corrected its Olmstead error in Katz v. United States (1967).

EPCA represented the initial effort of Congress to accommodate the law to Internet communications. Based upon then-existing storage technologies, the statute extended Fourth Amendment privacy protection to the content of stored emails that were 180 days old or less, but not to email content stored for a longer period. The development of cloud-enabled data storage has rendered EPCA’s 180-day distinction obsolete. Emails are now routinely saved by consumers for years. LEADS would thus require a judicial warrant based on probable cause for law enforcement to search or seize the content of any email stored in the United States. That update is long overdue.

Globalization has overtaken all walks of life but one. Travel is globalized. Crime is globalized. Business is globalized. Climate change is globalized. The storage, retrieval, and transmission of electronic communications is globalized. But politics is not. There is no world government. There remain approximately 200 sovereign states exercising exclusive authority within defined territorial boundaries. The United States cannot be indifferent to their interests and powers in asserting its authority extraterritorially if it expects cooperation.

LEADS authorizes extraterritorial search warrants for the contents of email communications about a U.S. person stored abroad. The warrants must satisfy customary Fourth Amendment standards to avoid diluting the privacy of Americans, including notice to the target of the investigation absent special circumstances. But compliance is excused if it would violate a foreign law. That exception would seem to defeat the legitimate law enforcement purpose of the warrant. Foreign sovereigns will prohibit compliance to attract cloud-enabled data storage and to avoid the appearance of vassalage to the United States.

That is the lesson of extraterritorial applications of U.S. antitrust laws. France, England, Canada and Australia answered with “blocking statutes” forbidding compliance with any foreign state request or order for documents or information relevant to a U.S. antitrust investigation.

There is no escape from the dilemma of seeking enforcement of extraterrorial search warrants directed at U.S. persons or otherwise. They are pointless absent cooperation from foreign sovereigns. And even if we might elicit cooperation from time-honored allies like NATO members, adversaries like Russia or China would guarantee iron-clad resistance to any cloud-enabled data storage operation located within their boundaries. Business will migrate to the most business-friendly environment.

LEADS, nevertheless, opens a constructive conversation about respecting the Fourth Amendment and foreign sovereignty in an era where law enforcement is often more global than local. We should be consulting other nations as the legislation moves forward to ensure that any bill is more than sound and fury signifying nothing.

For more information on Bruce Fein, visit Brucefeinlaw.

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