- - Monday, September 21, 2015

Sen. Orrin Hatch, Utah Republican, former chairman of the Senate Judiciary Committee and chairman of the Senate Republican High-Tech Task Force, is atypical in championing legislation — the Law Enforcement Access of Stored Data Abroad (LEADS) Act — that optimizes privacy protection consistent with proven law enforcement needs in a globalized digital age. (Congress ordinarily surrenders its legislative responsibilities to the Executive Branch).

Bedrock philosophical principles derived from the Declaration of Independence and U.S. Constitution inform an enlightened appraisal of LEADS.

First, the right to be let alone from government snooping without probable cause to suspect complicity in crime is the most cherished right among civilized people and indispensable to a nation where the people censure the government, the government does not censure the people.

Second, liberty is the rule and government encroachment is the exception. Liberty is inherently good. Government coercion is inherently questionable. Coercion can be justified only by the government’s demonstration of a compelling interest in protecting American citizens from foreign or domestic aggression or predation.

Third, it is better to risk being the victim of injustice or wrongdoing than to be complicit in it. Americans take risks that unfree people do not because of our sacralization of liberty. Risk is the oxygen of freedom.

LEADS deserves enactment by these principles.

The government takes the position that the technologically obsolete Electronic Communications Privacy Act (ECPA) authorizes compelling companies through a search warrant to retrieve data stored in any jurisdiction in the world if the data can be accessed in the United States. The compulsion is justified, according to the government, even if compliance would violate the privacy laws of host nations.

That posture is unacceptable. The government has made no showing that accessing electronic data stored abroad is essential to prosecuting serious federal crimes intended to protect American citizens from domestic or foreign predation, e.g, murder, kidnapping, fraud, adulterated drugs, etc. Additionally, the liberty of technology companies in the United States is compromised by confronting them with the dilemma of either flouting a search warrant or violating the laws of a foreign nation and risking criminal punishment.

LEADS would answer the dilemma on the side of liberty. No company would be required to retrieve data abroad if compliance would transgress the laws of the foreign nation where the data is stored.

The government’s contrary aggressive interpretation of ECPA would create a worrisome double-edged sword. The world houses approximately 200 sovereign states. Most range between dictatorial and autocratic. If the United States could compel technology companies here to retrieve electronic data stored abroad for alleged criminal justice purposes supervised by an independent judiciary and the Bill of Rights, each of those countries—including China or Russia — could compel technology companies they host, for instance, China-based Ali Baba, to retrieve electronic data stored in the United States, but use the evidence to perpetrate grisly human rights violations. Neither China nor Russia has any legal system worthy of the name.

LEADS would also enable government to force the retrieval of data abroad from U.S.-based technology companies if the information concerned non-United States persons who lack any Fourth Amendment protection of privacy outside the United States.

The next step in the LEADS legislative process should be as follows. The Senate and House Judiciary Committee should hold hearings or briefings in public or executive session that compel the government to prove the significance of accessing electronic data stored abroad to the investigation or prosecution of serious federal crimes. The proof should be based on historical case studies, not past or future hypotheticals. If the government is unable to demonstrate that LEADS would have frustrated a non-trivial number of non-trivial prosecutions, LEADS should be enacted without change.

Liberty is the default position under the Constitution. It should be compromised only when the government shoulders a heavy burden of necessity.

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