My career didn’t really start until my job with Sen. Orrin Hatch in 2006, and there will be a line about him in my obituary when I die. So I was sad to see the news Tuesday that he was retiring, but after such a long career, he deserves a rest.
Something Hatch impressed on us was the importance of seeing the other side’s point of view. For example: you may push for stronger law enforcement powers, but you have to work with the people who push for strong privacy rights. Because we need both law enforcement and privacy.
And before Hatch leaves office in a year, Congress has the chance to pass a bill of his that will be serve both these interests.
Hatch is the sponsor of the bipartisan Internet Communications Privacy Act (ICPA), which will update law enforcement for the digital era. The government’s ability to perform digital searches — and the restrictions on that ability — are currently ruled by the 1986 Electronic Privacy Communications Act, or EPCA (yes, there are lots of similar, confusing acronyms in Washington).
The EPCA is very, very outdated. As one Microsoft VP wrote to promote Hatch’s bill, “The current laws were written for the era of the floppy disk, not the world of the cloud.”
Microsoft wants to see the ICPA pass because the government has been trying to steamroll them on data privacy for years. As part of a 2013 drug investigation, federal authorities under the Obama administration sought a warrant to read the emails stored at a Microsoft facility in Dublin. Microsoft refused, since an investigator’s warrant has no weight on foreign soil, so the Department of Justice responded with a contentious legal attack.
Microsoft has been winning, but they’re not out of the water. In 2016, a panel of three judges with the 2nd Circuit Court of Appeals unanimously agreed that the government cannot compel the disclosure of emails stored outside the U.S. — but the DOJ refused to let go. The issue has now escalated to the Supreme Court, which will weigh in sometime this year.
Yes, Microsoft has armies of lawyers to protect itself, but we should all be concerned. If the government can bully Microsoft, think of what they’ll be able to do to people without armies of lawyers.
Given the technological changes of the last 30 years, the EPCA is not a law the judicial branch should be interpreting — it’s a law the Congress should just replace. In fact, the 2nd Circuit’s Judge Gerard Lynch said just that.
Everyone relies on cloud computing, and this case threatens the foundation of that growing industry. Our government should not scare away new technologies like this. The DOJ is trying to shoehorn new technology into an old law and apply a standard to digital communications that would never be acceptable regarding physical documents.
Under the 1986 EPCA, for example, the government has the right to review emails that are 180 days old without a warrant. Under the Fourth Amendment, federal agents can’t rummage through letters in your attic, but that protection is not afforded to your emails and other digital communications.
This is the kind of privacy violation that was egregious to civil libertarians under President Bush but, for some reason, became permissible for the eight years that followed him. (Now that Trump is president, this is the kind of thing that gets their hackles up again.)
The ease of this kind of government violation is uncomfortable for regular folks like you and me on a personal level, but it could be devastating on a broader economic level, chasing multinationals away from U.S. soil for fear of government intrusion. As Hatch said:
“The potential global reach of government warrant authority has significant implications for multinational businesses and their customers. ICPA will aid U.S. law enforcement while safeguarding consumer privacy, striking a much-needed balance in today’s data-driven economy.”
Law enforcement generally doesn’t like restrictions of any kind, claiming that impairs their ability to do their job, but ICPA might actually improve their efficiency. As The Hill pointed out, federal surveillance finds one legitimate suspect for every 10,000 emails it reviews. The FBI knew about both the Orlando shooter and the Boston Marathon bombers beforehand, but was too overwhelmed by data to pick them out. Forcing law enforcement to be more focused could make it more effective.
IPCA would also reform the law enforcement framework the U.S. has with other countries (called Mutual Assistance Legal Treaties) so that we respect foreign nationals’ privacy and they respect that of our citizens. This means if we want to do something in Ireland, we have to tell the Irish; but no such protections are afforded to those without these treaties — sorry, ISIS. If nation states don’t agree, non-state actors can spread chaos without interference.
Updating the law with Hatch’s ICPA would be a boon to personal freedom, international diplomacy, the economy, and yes, even law enforcement.
The same day that Hatch announced his retirement, the NASDAQ surpassed 7,000 for the first time in history. Investors are confident about the future of technology, and President Trump has been quick to take credit for the stock market’s success since he was elected. If he gets behind ICPA, he will be signaling those investors that their faith is well-founded.
Jared Whitley worked for Sen. Orrin Hatch from 2006-08.