Microsoft's Win in Email Case Brings Calls for Legislative Reforms
Judge Lynch’s concerns were echoed by Microsoft President and Chief Legal Counsel Brad Smith, who said in his blog that Congress needed to act now. “Today’s decision means it is even more important for Congress and the executive branch to come together to modernize the law. This requires both new domestic legislation and new international treaties. We should not continue to wait.” There is a real risk to prolonged delay on legislation. While Microsoft has won this round, and while there’s no indication as yet of whether the DOJ will appeal, the fact is that the DOJ is not going to give up unless it’s forced to do so. The only way for that to happen is for legislation specifically laying out what the department is allowed to do and what it’s not allowed to do. By failing to act, one thing is certain—that the DOJ will keep trying to find ways to grab the information it wants, regardless of whether it’s protected by the U.S. laws, by international treaties or by the laws of other nations. If the DOJ doesn't get legislative direction, those attempts will continue. The outcome of such continued attempts to gain access to information held in other countries will be that those other countries will try to gain access to information in the United States. Such a race to extract information from other countries by other countries will turn into a free-for-all where international agreements cease to matter.The circuit court pointed out the existence of these treaties between the United States and Ireland and the United States and the EU as a primary reason for overturning the previous decisions and the warrants that were involved. Both Smith and Lynch have stressed that part of the solution has to be updating those existing agreements. Now that new treaties will have to be negotiated with the exit of the United Kingdom from the EU, perhaps this is the perfect time. But no matter how the process works, the Department of Justice can’t simply be allowed to demand whatever data it wants, wherever in the world it might reside, regardless of the laws in those other countries. Besides hurting the privacy interests of U.S. citizens and U.S. business interests, the lack of clear legislative guidance will lead to chaos when authorities in other nations either demand access to data residing in the United States or decide to restrict the international flow of data to defend their own sovereign privacy interests.
Fortunately, there are currently international agreements that do matter. But the DOJ has apparently decided they are too inconvenient to use. Those agreements, known as mutual legal assistance treaties or MLATs, provide the means for law enforcement agencies in one country to request data from another.