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Microsoft’s troubles with the U.S. Department of Justice would come to an immediate end with the passage of the LEADS Act, which was introduced in the U.S. Senate on Feb. 12.
The bill, known more formally as the Law Enforcement Access to Data Stored Abroad Act, would among other things put a stop to the Justice Department’s demand that Microsoft turn over emails stored on a server overseas.
The LEADS Act would allow law enforcement officials to get access to electronic data on the same basis as other material that’s held in non-electronic form. Briefly this means that for law enforcement to get access to data stored outside the U.S., the request must either use a mutual assistance treaty or it must belong to a U.S citizen. Currently, the Justice Department is trying to get email messages belonging to a European Union citizen that are stored on a server in Ireland.
This is the second time the Senate has considered the LEADS Act, which was originally introduced last fall, but Congress adjourned for the year before it could go to a vote. The bill was introduced by Sen. Orrin Hatch, R-Utah; Sen. Chris Coons, D-Del.; and Sen Dean Heller, R-Nev.
The House of Representatives is readying a similar bill that been co-sponsored by more than half of the members of that body, although it has yet to be formally introduced on the House floor.
One of the purposes of the LEADS Act is to restore international cooperation, which has been set back by the actions of the Justice Department to the extent that a number of European nations are working on laws that would restrict the ability of U.S. companies to operate in the EU because of the attempts by prosecutors in the U.S. to force access to data held by European entities.
“The LEADS Act promotes U.S. business by allowing U.S. companies to compete on a level playing field. The LEADS Act would clarify ECPA by stating that the U.S. government cannot compel the disclosure of data from U.S. providers stored abroad if accessing that data would violate the laws of the country where it is stored or if the data is not associated with a U.S. person,” Hatch said in his keynote address at an event the day the bill was introduced.
“Without this legislative change, a German tech company could claim that German citizens should not use U.S. Internet services because those services are more vulnerable to U.S. law enforcement collection efforts,” Hatch stated as a hypothetical situation, although exactly this scenario is taking place in Europe now.
The LEADS Act is getting a lot of strong support from the technology community, as you would expect. A number of companies, including Microsoft, IBM, the Business Software Alliance, Cisco and Verizon, have announced their support for the bill on Twitter.
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.
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.
“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.