Why is the Second Circuit being forced to defend our electronic privacy and preserve an international agreement from the Obama administration?
Recently, a Federal Judge in New York was convinced by lawyers from the Obama administration that international agreements and the Fourth Amendment were simply minor impediments to be brushed aside at the behest of the Department of Justice (DoJ) and their insatiable desire to have automatic access to any electronic data U.S. citizens and companies possess.
Right now this issue is simply too complex for John Oliver and his “little trolls”. Perhaps someday soon one of the late night soothsayers will make this a simple choice for the masses. But what members of Congress and their staff need to know now is that the Obama administration is attempting to establish a terrible precedent which will have far reaching repercussions - for Fourth Amendment rights, online data privacy, global electronic commerce, cooperation between international law enforcement and protection for U.S. citizens from foreign governments and provocateurs.
Last year, then-Attorney General Holder's DoJ issued a hybrid "part warrant and part subpoena" in an effort to strong arm Microsoft into handing over email and associated data of a registered user account. If that account was registered by a U.S. citizen, the ordinary legal process would have been sufficient -- as it is with thousands of similar requests every day from every law enforcement entity across the country. However, as the still-unnamed account was likely registered and held by a foreign national and the email messages and data reside on a server based in Ireland, the U.S. domestic legal process is not sufficient. The European Union has established a concrete set of policies to protect the data of their citizens. Any company doing business via servers based in the EU must comply with this and many other legal requirements. This is neither new, complex nor unexpected. This is simply the burden every company takes on as a price of doing business anywhere around the globe within the digital environment.
In the past in order to obtain personal information and private communications of European citizens the DoJ has followed well-established proper legal avenues. In fact they have done so for decades. You and I expect our government to do just that. Maintaining the rule of law and the moral high ground allows the U.S. government to not simply respect other countries' laws and regulations. This public position by our own government allows U.S. businesses to operate overseas with certainty, knowing that the U.S. government has a well established history of vigorously defending U.S. citizens and businesses who are acting properly in accordance to U.S. law.
These past proper actions by our government also protect us from unnecessary, malicious and unlawful "investigations" from the law enforcement entities of other countries. U.S. citizens do not live in fear of Chinese police entering a local branch of a U.S. bank and rifling through our private safety deposit boxes armed only with a warrant signed by a random regional Chinese magistrate. You and I have a right (the one provided by the Fourth Amendment) to expect that U.S. laws and regulations will protect our privacy and data while preventing foreign governments from unlawful actions. However, with the precedent our own DoJ is providing, there is nothing to stop Chinese or Russian police from doing exactly that to us when their own courts take a similar position.
To put this in plain English, if the Second Circuit finds in favor of the DoJ, the resulting legal scenario will very well break the cloud computing ecosphere. For Apple, Tucows, Amazon, Network Solutions, Google or any other company to continue to offer internet based email or cloud network services would be forced to create a subsidiary in each country they operate - each which has a slightly different set of privacy and data protections To do otherwise would create significant liability exposure outweighing any efficiencies gained through the use of a singular international internet-based work environment with cloud-based storage.
Some legal experts have recently expressed an opinion that the forthcoming hearing on September 9 doesn't matter. That either all companies should restrain themselves to Yahoo's model of only offering cloud services to those countries in which it has a separate subsidiary. They have expressed the opinion that if Obama’s Department of Justice (DoJ) chooses to not follow existing law, legal precedent and good international relations, it’s not that bad and it doesn't truly matter too much.
This case will likely prove to be a seminal point in the development of the Internet, cloud computing and global cyberspace. There is a need for a clear judgment in support of privacy, respect for the rule of law, consumer expectations, international treaties and international cooperation between law enforcement entities. The uncertainty created by the DoJ is beyond the scope of foolhardy. To protect American citizens from the unfortunate precedent created by the Holder DoJ, Congress needs to act when they return in September. While there are several courses of action Congress could take, only one piece of proposed legislation would actually respect and adhere to individual privacy protections - both in the U.S. and around the globe. Unfortunately neither the House and Senate have yet to consider the bipartisan LEADS Act. Originally introduced in the Senate by Sens. Hatch (R-Utah), Coons (D-Del.) and Heller (R-Nev.), this bill will protect our Fourth Amendment Rights and force the DoJ to respect international agreements while preserving law enforcement’s ability to legally access email and data in the cloud.
Horowitz is an independent consultant specializing in public policy strategy, coalition building and development. He has served as staff for conservative members in both the U.S. House and Senate.