Late last week, Sen. Orrin Hatch of Utah introduced the Law Enforcement Access To Data Stored Abroad Act (LEADS Act) which would require law enforcement to obtain a warrant under the Electronic Communication Privacy Act (ECPA) to obtain the content of subscriber communications from an electronic communications or cloud computing service. According to Sen. Hatch, the legislation would "strengthen privacy in the digital age and promote trust in US
technologies worldwide by safeguarding data stored abroad, while still
enabling law enforcement to fulfill its important public safety mission".
The LEADS Act appears to have been introduced in response to an ongoing federal court case that required a U.S. email service provider to turn over customer emails that are stored in Ireland in response to a U.S. warrant instead of going through the proper legal channels in Ireland. This ruling was very troubling because it disregarded European digital privacy laws. Unless this decision is reversed, it may encourage foreign countries to ignore U.S. privacy laws when demanding access to their citizens digital content that is located in the U.S.
The passage of the LEADS Act is needed not only to better protect digital privacy, but also from a business perspective. According to The New York Times, the U.S. cloud computing industry may lose tens of billions of dollars in business because international companies and governments have lost confidence in U.S. technology companies due to the NSA surveillance programs that Edward Snowden exposed in 2013. Forrester Research has indicated that these losses could be as high as $180 billion dollars for U.S. based firms.
As a lawyer who focuses on privacy and cyber security matters, I have seen some of my clients change their communication habits based upon the information obtained from the NSA documents leaked by Snowden. Even though I am a proponent of utilizing cloud platforms, due to the troubling state of our digital privacy protections and an increase in hacking incidents, I have been encouraging some of my clients to conduct more business in person and/or on the phone until the U.S. enacts stronger digital privacy laws. In some instances, I am advising clients to go "old school" and send more physical packages via personal courier or a trusted commercial parcel service.
Unless there are digital exigent circumstances, the government should generally be required to obtain a warrant to access our electronic communications. Since law enforcement officials generally need a warrant to search our physical homes and businesses, the same standard should apply to our digital homes and businesses.
The LEADS Act is a sensible bill that will help protect online privacy and bring digital public policy into the 21st century. With more of our personal and business communications occurring digitally, it is imperative that our electronic communications receive the same protections as our "old school" pen and paper documents.
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