Would you trust Vladimir Putin with your Internet data? The answer seems obvious. But unless Congress and the President move to modernize our outdated privacy laws that have failed to keep up with our digitally connected world, this scenario is not entirely farfetched.
The reality is that today much of our information is stored on servers. This includes sensitive information like our bank account and credit card information, but also personal data about our friends and family. Most of us are not thinking about the safety of our Internet data because we have a reasonable amount of faith in the system to safeguard our privacy.
But the truth is that in the absence of a proper legal framework that extends well far beyond our own borders, our privacy rights are at the whim of the courts and the governments of foreign countries – some who do not share our values grounded in democracy, liberty and the rule of law. As a result more U.S.-based companies are acquiescing to the demands of foreign governments to store data only in their servers as a price to operate in their country. This is what is known as data sovereignty and is a troubling trend that poses a serious threat to our privacy and our own national sovereignty.
How? To unpack this, it’s helpful to understand the basics of a landmark case involving the tech giant Microsoft. A few years ago the U.S. government went over to Microsoft and demanded that they turn over personal emails of an individual accused of narcotic violations. What made this case unique is that the individual in question was a U.S. citizen living in Ireland. As such Microsoft said that the U.S. government did not have the authority to compel Microsoft, or in that matter Ireland, to turn over this personal information without a proper legal basis.
Microsoft was eventually charged with contempt by the U.S. government and a long and protracted legal battle continues to this day. A recent ruling by the Second Circuit in the United States Court of Appeals was favorable to the tech company, but the ruling will not settle the matter unless there is future legislative and regulatory action.
The particulars of the case are decidedly 21st century, but the fundamentals of what is at stake is grounded in the ideas of private property, due process and the limitations of the federal government. Concepts that are as old as our republic. And in order to safeguard these principles we need Congress and this administration to come up with a framework that makes sense for the seismic changes about the way we protect our privacy in a digital world.
In short, we cannot leave this issue languishing back and forth in the courts or rogue governments.
Thankfully, there are some Members in Congress on both sides of the aisle that understand that the time to act is now, which is they have introduced the International Communications Privacy Act (ICPA) that will allow US law enforcement to obtain the data they need by allowing warrants to reach extraterritorially while also respecting the sovereignty of other nations. These parameters follow in the tradition and norms of our legal system.
More importantly, this legislation would also reduce the likelihood that other countries (think anti-American countries like Russia) are not able to impose their will on our own country, and our fellow citizens.
Of course Congress alone cannot address all this. For that, the President and this administration must also lead. One of the ways it can do this is to work with like-minded countries around the world that share our values and understand that private property and privacy rights are still important.
Congress has a long to-do list, but the longer we wait to act, the more likely that a worse case scenario of thugs like Putin demanding our Internet data can become a reality in the absence of clear direction and a change to our outdated laws. There are many issues that continue to divide Americans across the ideological spectrum, but on an issue as fundamental as protecting our privacy and national sovereignty, this issue is just plain common sense.
