DOJ pitches agreements to solve international data warrant woes
The Department of Justice is asking Congress to permit it to pursue reciprocal agreements to serve warrants on data with other countries, addressing what has become a sticking point in investigations at home and abroad.
The pitch came as a Senate Judiciary subcommittee held hearings Wednesday to parse out the increasingly confusing world of investigating crimes when data is stored around the world.
Modern cloud storage, including web-basedemail accounts and other services, can store information anywhere on earth. The problem the Department of Justice and tech companies have begun to face with is that data stored in a different country is quite possibly outside of the Department of Justice’s jurisdiction for warrants.
In a landmark case, a federal court ruled that Microsoft did not have to provide emails stored in Ireland requested in a warrant. But courts have differed on the issue. It is not entirely clear whether police demanding information stored internationally but accessible from within the United States are seizing evidence from the U.S. or the other country. Microsoft may be bound to both U.S. and Irish law, even if the two conflict.
The problem is just as bad if a foreign nation wants to access data stored in the U.S. Domestic law prevents tech companies from complying with any international request.
At the hearing, representatives from Microsoft, law enforcement, the United Kingdom and academia agreed in broad terms that something needed to change, and in many respects how that change needed to take place.
“I’ll make a bet,” said subcommittee Chair Lindsey Graham (R-S.C.). “I’ll bet if Congress understands we can fix this, we will.”
The solution for other countries seeking U.S stored data, suggests the DOJ, is that Congress allow it to negotiate reciprocal, bilateral agreements to serve data warrants. That suggestion has very little pushback. But the DOJ’s plan for receiving data from other countries would be to reverse the Microsoft decision entirely, which would irk tech companies that would continue to be stuck in legal limbo between the laws of multiple countries.
Sens. Orrin Hatch (R-Utah) and Chris Coons (D-Del) have proposed comprehensive legislation that takes a more delicate touch to handing internationally conflicting laws. Alternatively, the DOJ believes that bilateral agreements could quickly spread.
It currently seeks such an agreement with the U.K. that would serve as an international template.
Deputy National Security Advisor Paddy McGuiness represented the U.K. at the hearing, backing a bilateral agreement with between the U.S. and Britain. McGuiness became the first sitting UK official to appear in a hearing before Congress, something he said was a sign of how seriously the country takes the issue.
“The present conflict of laws is unsustainable,” said McGuiness.
Normally, allies handle evidence stored across country lines through Mutual Legal Assistance Treaties (MLATs). MLATs involve diplomacy and take months to complete. The DOJ believes relying on them for an increasingly common investigatory need will prevent nimble investigations.
“The MLAT Process is a legendarily slow and antiquated process. I think it was developed when lawyers used quills,” said ranking subcommittee member Sheldon Whitehouse (D-R.I.).
The five witnesses were originally scheduled to appear last week, but the hearing was rescheduled when Democrats protested the firing of James Comey by enforcing a rarely mentioned time limit for hearings.
Whitehouse apologized for the rescheduling, noting that the blame should not be put on Graham.
The “problem was on our side of the isle, not his,” said Whitehouse.
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