America needs an update to its technology protection and privacy laws — the last time it had an upgrade was in 1986, before many millennials were even born. Young people care about privacy and want Congress to update old laws that reflect advancing technology and the desire of young people to protect privacy while online and when texting friends.
Last year, the United States Government lost in the Microsoft v. United States case. The Second Circuit Court of Appeals ruled that law enforcement could not use Section 2703(a) of the Stored Communications Act (SCA) to obtain a warrant to receive email information from foreign servers. The 1986 statute, enacted as Title II of the Electronic Communications Act (ECPA), allows law enforcement, without warrant, the ability to obtain any information as the data is older than 180-days.
Microsoft attempted to aid law enforcement in their criminal narcotics investigation domestically, but most of the data was held abroad, in Dublin, Ireland. The company held that the government could not compel Microsoft, and any other company with data abroad, to turn over customer emails stored abroad. Winning the case, the court ruled in the favor of privacy, and exclaimed that “extraterritoriality” was not within the bounds of a domestic warrant. In plain speak, the DOJ could not continue their investigation without international warrants or paperwork.
But unabashedly, the DOJ tried reopen this case and “readdress” the previous rulings. Although the courts have set a precedent to rule on the side of privacy, actions like this, that try to interpret law in the name of “convenience,” set off multiple alarms.
Especially disquieting is that in the future, courts may rule differently than they did on the Microsoft v. United States case. The Second Circuit Court of Appeals ruled on the plain meaning of the law. According to the courts, the “SCA had no indications [when it was written into law] that Congress envisioned an extraterritorial use for the statue.” However, continued efforts to circumvent the ECPA and SCA through separate court action may lead to an unfavorable precedent to the protection of privacy.
These pieces of 1986 legislation present themselves as trepid reminders that laws need to change with the times. In 1986, car phones, the Nintendo Entertainment System (NES), and radio pagers were introduced. Just last year, consumer virtual and augmented reality hit the market, the iPhone 7 was released, and data storage had hit its all-time high of 295+ exabytes or 295 billion gigabytes. The ECPA and SCA lay on assumptions based on what lawmakers thought technology would look like in the future. Looking at the status quo, it is clear that they did not guess right.
Although courts have made the vital first step, Congress must make the vital leap in amendments and legislation to reevaluate the SCA and ECPA in context to an technologically evolved world. Every proposal should be considered, including the International Communications Privacy Act (ICPA), a bipartisan bill introduced by Senators Orrin Hatch (R-Utah), Chris Coons (D-Del.), and Dean Heller (R-Nev.) Additionally, lawmakers must work with the White House to modernize domestic legislation and begin to consider new international treaties and guidelines. Within the proposed ICPA, is a way to streamline law enforcement’s ability to obtain a warrant, based on probable cause, before demanding information from a data carrier.
As a final reminder, Congress must remember that the laws they may pass also have the potential to become outdated like the ECPA and SCA. It is a large task to take on, but with proper blueprinting and careful analysis, this future legislation will provide a predictable and trustworthy environment for companies and countries to do business. Likewise, American citizens will be protected from the overreach of “convenient” law enforcement.
Young American citizens will watch Congress and the Courts closely to make sure that privacy is being protected by federal officials.
