by JAMES BOYD || Antiquated surveillance laws have put Americans’ electronic privacy and safety in jeopardy for years. And for years, Congress hasn’t done a thing about it.
But that may finally change. Several Supreme Court justices have had enough and recently took Congress to task for not doing more to modernize the treatment of data in our digital world.
Late last month, the Supreme Court heard oral arguments about a troubling case in which the Justice Department demanded Microsoft hand over a customer’s data stored on one of its servers. That customer was an Irish citizen and the data was stored on a server located in Ireland. By turning the information over, Microsoft would’ve been guilty of violating the country’s privacy laws – and that doesn’t begin to address the fact that from Supreme Court justices to small town sheriffs agree that such search warrants shouldn’t apply extraterritorially.
In fact, Justices Neil Gorsuch and Stephen Breyer grilled the Justice Department on how something as territorially limited as a search warrant could compel the release of information abroad.
In order to justify asking Microsoft to violate international law and, presumably, the Fourth Amendment, the Justice Department distorted the Electronic Communications Privacy Act, better known as the Wiretap Act. The law was passed in 1986 before widespread use of the internet and decades before the invention of smartphones or cloud computing.
As Justice Ruth Bader Ginsburg noted, “the starting point all would agree [is that in] 1986, no one ever heard of clouds. This kind of storage didn’t exist.”
By illegally demanding that Microsoft and other U.S. tech companies pillage data held in other nations and belonging to citizens of other countries, foreign governments and businesses will begin turning their backs on American firms. As a result, the Justice Department may ultimately force American businesses to relocate their headquarters overseas to avoid the harm to their bottom line caused by the Wiretap Act.
Besides creating legal and economic headaches for companies, the Wiretap Act has also been a huge failure at the one job it was created to do: protecting Americans. The law has been reinterpreted so that any electronic messages over 180 days old are considered abandoned. This allows law enforcement to access emails and messages with a simple subpoena instead of a judge-issued warrant.
Not only does this twisting of the law violate Americans’ Fourth Amendment protections against warrantless search and seizure, it also forces federal intelligence agents to sift through millions of emails, texts and online messages to find potential criminal and terrorist activity.
Researchers at the University of Pennsylvania estimate this unfocused, chaotic approach leads to more than 10,000 false positives for every one real lead, allowing vital information about individuals such as Nikolas Cruz, the shooter responsible for killing 17 students and faculty at Marjory Stoneman Douglas High School in Parkland, Florida, to go unexamined.
Clearly, the Wiretap Act is in need of an overhaul to better protect Americans and safeguard U.S. companies in today’s digital age – and the U.S. Supreme Court agrees.
When hearing the Microsoft case, several Supreme Court Justices, including Ginsburg, Breyer and Sonia Sotomayor, chastised Congress for failing to update the obsolete Wiretap Act, and encouraged action. Sotomayor pointed out that Congress wrote the law in much different technological times, forcing the justices to “imagine what Congress would have done or intended in a totally different situation today.”
“Wouldn’t it be wiser just to say let’s leave things as they are, and if Congress wants to regulate in this brave new world, it can do it?” Ginsburg asked.
Fortunately, South Carolina’s senior United States Senator is helping to lead a bi-partisan charge to do just that. Sen. Lindsey Graham, is the co-sponsor of the Clarifying Lawful Overseas Use of Data (CLOUD) Act. The legislation updates the decaying Wiretap Act by allowing the federal government to enter into bilateral information sharing agreements with countries that would give both parties access to foreign data stored within their borders.
According to House co-sponsor Suzan DelBene (D-Wash.), the CLOUD Act “guarantees that users of technology have confidence that their privacy rights will be protected by due process while simultaneously ensuring law enforcement agencies have necessary access to information through a clear, legal framework to keep us safe.”
South Carolina residents should feel proud that one of their own elected leaders is leading the way in modernizing federal surveillance laws in order to protect citizens, safeguard businesses and defend Americans’ Constitutional rights. Other members of Congress should join Sen. Graham in supporting the CLOUD Act.
James Boyd is a retired small business owner residing in Fort Mill, S.C.
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