U.S. Bill Would Ban DoJ Warrant for Email in Overseas Microsoft Server
Perhaps more promising is the statement of the current nominee for U.S. attorney general, Loretta Lynch, who has indicated during confirmation hearings that she would abide by the restrictions on gaining access to data stored outside the U.S. Whether this means she would direct prosecutors to drop their efforts in the Microsoft case, however, remains to be seen. In fact, Lynch promised that once she's confirmed, she will work with Congress on the LEADS Act and other related legislation. "I certainly commit to working with you on this important legislation and all the issues that will flow from it," Lynch said in response to Hatch's questions about her support. However, if the LEADS Act were to be passed and signed by President Obama, there would be little choice. But of course that's the issue for the current administration, which so far has not hesitated to carry out actions of questionable legality, such as ignoring existing treaties to gain access to foreign emails. Would President Barack Obama sign the LEADS Act? Considering the level of support in both houses of Congress, he might realize that he has no choice, but the president might also dare Congress to override his veto."Law enforcement agencies wishing to access Americans' data in the cloud ought to get a warrant," Coons explained when the act was introduced, "and just like warrants for physical evidence, warrants for content under ECPA shouldn't authorize seizure of communications that are located in a foreign country. "The government's position that ECPA warrants do apply abroad puts U.S. cloud providers in the position of having to break the privacy laws of foreign countries in which they do business in order to comply with U.S. law. This not only hurts our businesses' competitiveness and costs American jobs, but it also invites reciprocal treatment by our international trading partners," Coons said. While there's every reason to believe that eventually federal prosecutors' demands that Microsoft disgorge emails stored abroad will be found contrary to existing law, the LEADS Act removes all doubt. Attempting to extend the reach of U.S. domestic laws to apply anywhere in the world is one of the worst types of overreach. This law would rein in the DoJ's excesses. Assuming, of course, the DoJ didn't decide to ignore that law as well.
However, I don't think a veto for this bill is likely. It has strong bipartisan support in both houses. It's also presented as a way to update the Electronic Communications Privacy Act to reflect current technology, which the Obama administration has consistently said it favors. The act is also presented as a way to keep U.S. companies from breaking the law, which is pretty difficult for the president to oppose.