Congress, Not the Supreme Court, Should Write Data Privacy Laws

Sen. Orrin Hatch (R-Utah) announced this week that he is seeking to attach the Clarifying Lawful Overseas Use of Data (CLOUD) Act to the omnibus spending package, which must pass by March 23 to keep the government open.

Critics argue, with some justification, that omnibus bills can devolve into grab bags for special interests. But they can also provide an opportunity for Congress to prioritize and expedite pressing legislation.

Whatever one’s views on the overall omnibus bill, Hatch’s proposal to pass the CLOUD Act deserves rapid action in light of the unique time crunch created by the Supreme Court in United States v. Microsoft Corp.

The case began in 2013, when Microsoft challenged a federal search warrant for access to an Irish citizen’s emails stored in a data center in Ireland. The Department of Justice request has pit the government against tech companies, European nations and privacy activists that share concerns about the extraterritorial reach of the U.S. government.

The Supreme Court convened oral arguments on the case last month. The question for the court is how to apply the Electronic Communications Privacy Act to data stored on a foreign server.

The challenge is that ECPA does not provide meaningful guidance to the justices because it was written in 1986, nor do U.S. warrants have extraterritorial reach to apply to foreign sovereigns. The fact that U.S. laws haven’t kept pace with the far-reaching implications of technological advancements like the cloud creates uncertainty for all parties involved, and it leaves the court with an unenviable dilemma.

Some argue that the court can side with the Department of Justice at the cost of undermining U.S. relations with its allies and eroding the privacy rights of both consumers and businesses. Others argue that a decision for Microsoft could hinder law enforcement’s ability to keep up with the increasingly dangerous world of transnational crime. Most generally agree that these are the only two possible outcomes and concede that both would have damaging consequences.

At last month’s Supreme Court hearings, Justice Ruth Bader Ginsburg raised concerns about a judicial ruling in the absence of Congressional action to update the laws, saying: “So wouldn’t it be wiser just to say let’s leave things as they are; if … Congress wants to regulate in this brave new world, it should do it?”

The prospect of a far-reaching and misguided Supreme Court ruling is animating a broad cross-section of politicians, legal scholars and foreign governments.

As Constitutional law scholar Curt Levey warns, antiquated law and Congressional inaction will force the court to overstep its role and attempt to do “the job Congress was meant to do” in an attempt to “balance the presumption against extraterritoriality against the needs of law enforcement.”

Critics such as Sen. Ron Wyden (D-Ore.) fear that the CLOUD Act will give the president “far too much power to approve surveillance agreements with human rights abusing foreign governments without real oversight by Congress.” If granting Trump powers is the operational concern, then a Supreme Court decision in favor of the Department of Justice that codifies the existing system should terrify Wyden. By contrast, the CLOUD Act would provide a framework for due process rather than a blank check.

Legal scholars Jennifer Daskal and Peter Swire argue in a recent piece in Lawfare that, while the CLOUD Act’s privacy protections could be improved, the bill ultimately would “improve privacy and civil liberties protections compared to a world without such legislation.”

As a legislative body, Congress is better equipped than the court to grapple with the nuances of complicated technological questions. The CLOUD Act is the product of a bipartisan coalition in Congress and has won the support of the Department of Justice, foreign governments and privacy activists alike by balancing the needs of law enforcement, consumers and international comity through due process.

The omnibus spending package appears to be on track and presents an opportunity for Congress to move swiftly and beat the buzzer. Passage of the CLOUD Act would preclude the need for the Supreme Court to attempt to draft new law from the bench.

While the CLOUD Act would hardly address three decades of congressional neglect in updating the laws, it would at least put into place an updated framework that resolves the immediate data privacy and conflict of laws issues before the court. It would also provide a foundation for Congress to make incremental improvements as technology adapts, ensuring that tomorrow’s Supreme Court will not be saddled with the same headache facing justices today.

Andrew Langer is president of the Institute for Liberty, a conservative public policy advocacy organization.

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