October 30, 2017 at 5:00 am ET
The digital revolution has transformed the way we live. Now it’s time for our privacy laws to reflect that.
Last week, a coalition of 13 political organizations sent a letter to the Senate Judiciary Committee, urging its members to finally give the U.S. privacy rulebooks a digital update.
The information age has brought great prosperity to the world, but it’s also raised legitimate concerns regarding privacy rights. In light of the war on terror, oftentimes those privacy rights are undermined. Should the federal government be able to track the internet activity of all Americans, without a warrant? Is it the right of the U.S. government to take the email data of foreign nationals without consulting the respective sovereign nation, even if they’re a close ally to the United States?
Those are just a few of the questions Congress needs to clarify in the information age, and they need to act now. After all, the current system for U.S. law enforcement data search and seizure is based on the antiquated 1986 Electronic Communications Privacy Act. That’s like referring to a Polaroid original camera manual to understand Snapchatting in 2017. That’s just not how it works. However, the ECPA doesn’t outline how to take silly pictures with your friends. It provides the government with the authority to read you emails after 180 days.
It’s no surprise that the government isn’t up-to-date like Silicon Valley. Washington is overflowing with bureaucrats, not tech gurus, entrepreneurs and innovators. What’s alarming, however, is the Justice Department’s desire to ignore Americans’ privacy rights, undermine the sovereignty of our allies, compromise the principles of international reciprocity and therefore break down the rule of law. So it’s up to Congress: Enact legislation to ensure digital privacy rights for all Americans or risk the deletion of the Fourth Amendment as we know it.
The Supreme Court has agreed to hear the Microsoft v. United States court case on internet privacy in the coming weeks. After several lower federal courts rightfully ruled on the side of Microsoft and privacy rights, the Justice Department successfully petitioned the Supreme Court to resolve the issue. With privacy rights on the brink and gross misunderstanding of convoluted data protocol, there’s good reason to take this issue to the high court.
The Microsoft court case began when the U.S. government issued a warrant to access the tech giant’s data storage center in Dublin, Ireland. Using the Stored Communications Act, the U.S. government argued the right to access information from technology providers. Last year, a unanimous decision by the Second Circuit of the U.S. Court of Appeals rejected the government’s argument, rightfully citing the well-established precedent that U.S. law applies only within our country’s jurisdiction.
But now that the case is in the hands of the Supreme Court, the final decision will set statutory authority. In order to set the record straight, Congress must act to protect privacy rights. Fortunately, there are bipartisan initiatives in the legislature to make it happen.
Sens. Orrin Hatch (R-Utah) and Chris Coons (D-Del.) re-introduced the International Communications Privacy Act. This bill would establish a clear framework for whether U.S. law enforcement officials can access electronic communications – regardless of the data’s location.
The ICPA would require law enforcement officials to obtain a warrant for electronic communications and clarify that technology providers who receive a warrant must act in accordance to it by producing the requested content. The bill also would create a special rule for individuals outside of the United States by requiring the U.S. government to notify a foreign country if a warrant for electronic communications has been issued in their jurisdiction. A qualifying foreign country – one that meets specific privacy and human rights standards, provides reciprocal access to the United States and doesn’t pose an obstacle to national security – can object to a U.S. warrant if it violates their laws.
By reinforcing digital privacy rights at home, holding the United States accountable to international reciprocity and respecting the sovereignty of foreign countries, the ICPA provides a modern mainframe for the Fourth Amendment.
Similarly, the ECPA Modernization Act would update the current system. Introduced earlier this year by Sens. Mike Lee (R-Utah) and Patrick Leahy (D-Vt.), the bill would reflect the privacy concerns of 2017. As Lee said, Americans “don’t believe the government should be able to always know where they are just because you are carrying a cell phone.”
Those senators aren’t the only government officials concerned with privacy rights. The House of Representatives has seen movement on privacy in the current congressional session, and the support is large and bipartisan. Reps. Kevin Yoder (R-Kan.) and Jared Polis (D-Colo.) reintroduced the Email Privacy Act earlier this year in an effort to combat the government’s warrantless search of private emails. The Email Privacy Act affirms an expectation of privacy for Americans in the digital age and requires the government to obtain a warrant, yet still provides the tools necessary to combat crime.
There is plenty of support for privacy rights in Congress, but our officials need to take action before it’s too late. With the Supreme Court hearing approaching, time is running out. Congress may end up relinquishing its role in securing privacy rights for innocent Americans if the judges decide against the Fourth Amendment. Hopefully America’s representatives know that just like their digital footprints, their record in Congress lasts forever.
Matthew Boyer is the media relations associate with Students For Liberty and a policy analyst for the Consumer Choice Center.
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