Senator Orrin Hatch, R-Utah, former Chairman of the Senate Judiciary Committee and Chairman of the Senate Republican High-Tech Task Force, spoke today at the Media Institute on the Law Enforcement Access to Data Stored Abroad (LEADS) Act, following a Senate Judiciary Committee hearing focused on the issue of privacy for electronic communications.
On this morning’s hearing on the Electronic Communications Privacy Act (ECPA), Senator Hatch said:
As this morning’s Senate Judiciary Committee hearing confirms, virtually everyone agrees that Americans should enjoy the same privacy protections in their online communications that they do in their offline communications. But Congress has not adequately updated the law since its enactment, and technological developments have resulted in disparate treatment between online and offline communications.
On the implications of ECPA’s shortcomings and the administration’s position on data stored abroad:
While we do not yet know the outcome of this case, the government’s position regarding the reach of its warrant authority has significant implications for both the technology companies that store data abroad and the individuals and businesses whose data is stored.
The government’s position presents unique challenges for a number of industries, which increasingly face a conflict between American law and the laws of other countries. For example, when technology companies receive demands from U.S. law enforcement to turn over data on behalf of foreign customers, they are forced to make a difficult decision: either comply with the demand and satisfy U.S. law or risk violating the privacy laws of the host country.
How the shortcomings of current law and the administration’s position could affect media companies:
As media organizations, you are particularly sensitive to these issues. Here in the United States we respect free speech and media independence. Your newsrooms are free from government search or censure. Yet, because of this Administration’s position on the extraterritorial reach of warrants, your rights could be circumvented by foreign law enforcement agencies seeking to access your confidential information—even if it is stored in the United States.
On the impact of the administrations far-reaching, extraterritorial policy:
Moreover, if federal officials can obtain e-mails stored anywhere in the world simply by serving a warrant on a provider subject to U.S. process, nothing stops governments in other countries—including China and Russia—from seeking e-mails of Americans stored in the U.S. from providers subject to Chinese and Russian process.
Lest you think there are no reciprocal or far-reaching consequences, imagine a scenario where China wants to access e-mails stored in the United States. Instead of going through established diplomatic channels or international treaties to obtain those e-mails, Chinese officials could go to a China-based company, like Ali Baba, and demand that it retrieve e-mails from its U.S. servers and turn them over.
The need for the LEADS Act:
Without an appropriate legal framework, the current state of affairs regarding extraterritorial use of warrants puts the privacy of American citizens at risk.
That is why I introduced the LEADS Act: to promote international comity and law enforcement cooperation. To date, the bill has received broad bipartisan support in both the Senate and the House of Representatives and from trade associations and the business community.
The proposed legislation would clarify ECPA by stating that the U.S. government cannot compel the disclosure of data from U.S. providers stored abroad if (1) accessing that data would violate the laws of the country where it is stored or (2) the data is not associated with a U.S. person—that is, a citizen or lawful permanent resident of the United States, or a company incorporated in the United States.