Congress faces a tough slog to update the email privacy law at the center of Microsoft’s fight against a U.S. warrant mandating that it turn over a customer’s email account stored in Ireland.
Competing bills to reform the decades old Electronic Communications Privacy Act (ECPA) have gone nowhere in Congress in the past few years.
Microsoft and other tech companies back a bill that would set limits on what kind of information the government can force a U.S. company to hand over when that data is stored overseas. The bill would not force a company to turn over data, even under a warrant, if the data concerns foreign citizens.
In court this week, a Microsoft lawyer suggested any decision the panel of judges handed down would be short lived since it is “almost 100 percent certain that Congress will act and will act quickly.”
That prompted Judge Gerard Lynch, one of the three judges at the Second Circuit hearing the case, to take an almost mocking tone. Lynch said the court would be “holding our breaths” for an update from Congress.
Sen. Chris Coons (D-Del.), who has sponsored legislation in the Senate on the issue, didn’t quibble with the judge’s pessimism.
Still, he told The Hill “it could be constructive” for courts to take notice of the issue, “recognizing the difficulty that Congress is currently having reaching bipartisan agreements on legislation.”
He compared the fight to patent reform, where courts have made some changes on the issue in the face of congressional inaction.
Jennifer Daskal, an assistant law professor at American University, said there are always “huge hurdles” to get Congress to move, but she hoped the Microsoft case puts the issue on Congress's map and spurs action.
“This case has hopefully brought the issues sufficiently to the forefront that Congress will start to take them seriously and really work towards reform,” said Daskal, who has been tracking the case closely on the Just Security blog.
Reforming the Electronic Communications Privacy Act (ECPA) has been a major priority for the technology industry for the past few years. It will receive renewed focus next week when the Senate Judiciary Committee hears testimony from officials at a number of federal agencies, which have been skeptical that a change could hamper their enforcement tools.
Multiple provisions of the 1986 law need updates, and lawmakers have largely focused on closing a glaring loophole that does not directly concern the limits of a U.S. warrant to access data stored overseas — the central point in the Microsoft case.
Congress has focused most closely on killing a provision that allows law enforcement to use a subpoena, rather than a warrant, to access emails or other data stored in the cloud that are older than 180 days. The bill, narrowly focused on that issue alone, has gained support from a veto-proof majority in the House and more than 20 senators in the upper chamber.
“The Email Privacy Act is the only legislation that accomplishes necessary reforms while keeping intact a broad coalition of tech industry groups, privacy advocates, and law enforcement officials in support,” Rep Kevin Yoder (R-Kan.) said, who introduced the bill with Rep. Jared Polis (D-Colo.).
Yoder was implicitly calling out the bill backed by Microsoft, which would close the 180-day loophole while also setting other limits on government intrusion on data stored overseas.
The Microsoft-backed bill, called the LEADS Act, has divided the tech industry, and it has far fewer backers than Yoder’s proposal.
Daskal and others said Yoder's broadly supported bill could act as an opening for a broader conversation about the limits of a U.S. warrant to access data stored overseas.
“When that bill goes to mark up, it would not surprise me if supporters of the LEADS Act offered a part or parts of that bill as amendments,” said Greg Nojeim, a senior counsel at the Center for Democracy and Technology, who sat in on the oral arguments in New York.
The hearing next Wednesday is expected to focus on the Senate's version of Yoder's bill, sponsored by Sens. Mike LeeMike LeeGOP hasn’t reached out to centrist Dem senators Overnight Healthcare: GOP looks for ObamaCare path as right lashes out GOP looks for ObamaCare path as right lashes out MORE (R-Utah) and Patrick LeahyPatrick LeahyDem senator asks for 'top to bottom' review of Syria policy A guide to the committees: Senate Verizon angling to lower price of Yahoo purchase: report MORE (D-Vt.). But Coons and Sen. Orrin HatchOrrin HatchHow to marry housing policy and tax reform for millions of Americans Though flawed, complex Medicaid block grants have fighting chance A guide to the committees: Senate MORE (R-Utah), who are pushing the LEADS Act, are expected to plug their legislation as well.
“Judge Lynch is right to wish for clearer guidance from Congress on this important issue—regardless of the outcome of this particular case, we need to safeguard our data overseas from improper government access and that the law has been silent on how such data should be handled and Congress must provide guidance,” Hatch said in a statement.
— This post has been updated to reflect the correct number of supporters in the Senate.