DOJ Seeks New Law to Require U.S. Firms to Deliver Overseas User Data
"When I was in the White House I worked on a lot of these questions," Schwartz said, noting in many cases, such requests didn't include information that was needed for the request to be approved, but "the Justice Department works closely with the other countries," he said. At this point, the proposal by the DOJ is just that. It's basically a skeleton that needs to be fleshed out to become a bill, and then someone needs to introduce it for consideration in the House of Representatives and Senate. However, considering it's a presidential election year and that everyone in the House of Representatives and a large portion of the Senate is out campaigning for re-election, it doesn't seem likely. In addition, while the proposed legislation does mention certain steps that might require transparency, there's little in the draft that would require it. "It needs to be transparent," Schwartz said. "Companies will feel better if it's more transparent."Considering the level of suspicion now complicating relations between the United States and Europe, for example, bilateral adoption is far from assured. While it appears that the agreement between the United States and the U.K. is making progress, it's still in the discussion stage. Much depends on Britain's exit of the European Union (EU), if and when that happens. In the short term, the DOJ needs to decide whether it's going to appeal the circuit court's decision blocking access to private data stored overseas by Microsoft. But even if it does, a resolution won't happen in the near future, if only because the appeal could take years. Probably the speediest resolution for getting the agreement with the UK is to hope that nation's secession from the EU moves ahead in the estimated two years that many observers think is likely. Then, unlike making an agreement with all of Europe, only two countries need to agree and given the history of close cooperation between the UK and the United States, such an agreement is at least feasible. But the Microsoft case will remain the 800-pound gorilla in the room, lurking over any agreement that some might take as an infringement on privacy. Will it make it through Congress? Will the president sign it and would such an agreement make it through the courts? All of that remains a mystery. Until then, the reach of the Justice Department to get access to email stored overseas is seriously limited. For some, that's very good news.
But it just doesn't require approval in the United States to take effect. An agreement like the one being proposed also needs to be acceptable to every foreign country that might be willing to support it.