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Wednesday, December 21, 2016

Will Attorney General Jeff Sessions Stand for Privacy?

The current DOJ will attack digital privacy even if it damages diplomatic relationships. Jeff Sessions should change course.

Recently, a district court settled the Microsoft v. DOJ case,  a landmark decision that protected Microsoft’s ability to hold its “cloud based” servers abroad without interference from US law enforcement. Simply put, the case struck down the US government’s request to unlawfully place its global footprint on the world by seizing Ireland’s telecommunications data.

If Microsoft loses, the DoJ could effectively invade any sovereign nation’s privacy.

As Microsoft said, this was a win-win for all of the players on the international political scene. Giving the US this unchecked power could have created a “global free-for-all” — a domino effect where the most powerful countries could readily ignore weaker nations’ sovereignty.

But now is not the time to cheer. The DoJ, obsessed with the prospect of gaining access to American companies’ international servers, has again re-opened the case.

Today, the million dollar question is this: will Jeff Sessions, the new Attorney General nominee, fix or strengthen the tensions that the Obama DOJ has created with Ireland?

High Stakes

If the United States emerges victorious in the Microsoft case, the DoJ could effectively invade any sovereign nation’s privacy, as long as its servers are owned by American companies. These is no doubt that these brash actions would have severe diplomatic consequences.

If American law enforcement begins stepping into any foreign server outside of the regular legal bounds of foreign countries, it would set an awful precedent for not just for data storage but for any case involving assets held abroad.

ECPA is an outdated piece of legislation that should — and must — be replaced.

The Obama DOJ cites the Electronic Communications Privacy Act (ECPA), which was signed into law in 1968, as giving it the authority to tap Ireland’s servers with a warrant. This loose interpretation of ECPA is ignoring the potential consequences of interference in Ireland for political convenience.

According to the ECPA, the government is permitted access to data without a warrant if it is more than 180 days old. The problem is that at the time the law was written, American households did not even know what an e-mail was, let alone clouding-computing. To rely on a law that is older than the first The Planet of the Apes movie, is a recipe for disaster.

ECPA is an outdated piece of legislation that should — and must — be replaced by rules that take 21st century technology, as well as the importance of respecting foreigners’ domestic laws, into account. We live in an age of technology and instantaneous video calls – ECPA was passed when we were still figuring out how to send messages with a few lines of text from state to state.

A New Law for New Era

With a world that relies on instantaneous international communication, it is clear that the United States should have laws on the books that keeps that in mind. For that reason, the International Communications Privacy Act (ICPA), was introduced by a bipartisan group of congressmen and it should be looked at closely as a potential solution to the diplomacy crisis in Ireland.

ICPA, co-sponsored by Senators Orrin Hatch (R-UT) and Chris Coons (D-DE), intends to wipe away the muck that allows the DoJ to reopen cases that allow law enforcement to bend the law to their will.

While it is easy to point fingers at law enforcement and the DoJ, the real enemy to progress and American’s rights to privacy is the lack of clarity in the law. ICPA was passed with the intent to make the law more streamlined and more efficient in stopping foreign tension. Jeff Sessions could flex his constitutional muscles by fixing his predecessors’ mistakes.

As Sen. Orrin Hatch explained, “federal judges have rightly concluded that current law does not provide U.S. law enforcement with authority to access data stored overseas.” The time is now to work constructively to fine-tune ICPA so that we can strengthen privacy and promote trust in U.S. technologies worldwide while enabling law enforcement to fulfill its important public safety mission.”

Jeff Sessions, the new Attorney General nominee, should seize on this opportunity to flex his constitutional muscles by fixing his predecessors’ mistakes, all while protecting American citizens from blowback to our own privacy rights. After all, the future is coming, like it or not, and the more we wait for protections of our privacy, the less likely we will be able to gain them.  

  • Jonathan Lee is a filmmaker and freelance political journalist.​