Time Has Come to Reform Laws Governing Law Enforcement Access to Data

Paul Rosenzweig is a senior adviser to The Chertoff Group, a global security and risk management advisory, and former deputy assistant secretary for Policy at the Department of Homeland Security.

Some of the laws governing the process by which the federal government gains access to electronic data are nearly 30 years old. As a result, electronic evidence today is, effectively, accessible to the government by fiat at a time and place of its choosing, often without regard for who is holding the evidence or even where, on the vast globe of a connected Internet, the evidence is being stored.

Rules written for a time when smartphones and tablets didn’t even exist are hopelessly out of date in today’s world. It is time, and well past time, for Congress to begin the process of bringing federal electronic evidence-gathering law into the 21^st century.

But at a hearing recently before the Senate Judiciary Committee, representatives of the federal government demurred.  Their rhetoric was supportive in theory, but their testimony was laden with exceptions, caveats and concerns. Their basic message, if one may paraphrase it, was “go slow, we need to consider this carefully, we like the idea in general but...”

Otto von Bismarck is famously (though perhaps apocryphally) reported to have said, “When you say you agree to a thing in principle, you mean that you have not the slightest intention of carrying it out in practice.” The modern-day equivalent, observable regularly in congressional hearings is often more in the vein of, “we agree with this idea in principle, but we have concerns about how it will be implemented.” What you really mean is, “I oppose this legislative proposal completely.”

That is the only way to interpret the testimony of federal law enforcement officials the other day. And were I in their shoes (as I have been in the past), that is no doubt the argument I would have made. After all, why would members of the law enforcement community ever want to acquiesce in a law change that diminishes their own authority and discretion?

But there is more to the issue of lawful access to electronic evidence than the question of law enforcement efficacy. Much more. Information and communications technology represent something on the order of 10-20 percent of recent economic growth in America and around the globe. That record of economic dynamism is being threatened by the continuation of antiquated laws and policies. 

Because our laws are out of date, and because they seem to give American law enforcement unilateral and unfettered access to electronic data, American information and communication technology companies are increasingly becoming pariahs, especially in foreign markets. Estimates vary, but it is clear customers are turning to non-U.S. based companies to provide cloud services, with losses perhaps as much as $35 billion annually.

If Congress does not act soon, the trend lines are unmistakable. American companies will face ever-growing challenges to the competitiveness, especially overseas. Perhaps even more problematic, we will also see greater confrontation between the tech sector and the federal government over basic rules of product development. For if the laws aren’t modernized to keep up with technology, the technology will change to make the law irrelevant or unnecessary. The growing encryption debate is just one harbinger of things to come as this trend toward confrontation accelerates.

In the end, balancing legitimate law enforcement concerns with equally legitimate economic concerns about competitiveness and citizen’s privacy is more a matter of judgment and politics than it is of law. And that sort of judgment is precisely what we want Congress to do, rather than the executive branch acting unilaterally.  

While it is appropriate to hear out the federal government’s concerns, the pace of technological change is too great to warrant further delay. The time for reform of the laws governing law enforcement access to electronic data is now.

(Image via agsandrew/ Shutterstock.com)