Senate looks to tackle overseas data access

The FBI obtains a warrant against an American criminal suspect and asks Microsoft to provide the criminal's emails. But those emails reside on a server outside the United States. Does Microsoft have to turn over the data?

Four recent court cases have held that U.S. companies must comply with such a warrant, but in July 2016, the U.S. Court of Appeals for the Second Circuit ruled that Microsoft did not have to turn over data stored on a server in Ireland because it constituted an extraterritorial application of the warrant.

The Second Circuit also said in its ruling that Congress could change the law to address cases of U.S. companies holding data overseas.

And Congress is seeking to do that, but it has several difficult questions to consider. First, what happens when data is stored in a country with privacy laws that prevent disclosure? In such a case, if a company like Google complies with the U.S. warrant, it could violate the laws of the foreign country and face hefty fines.

Second, what reverse precedent would such legislation create? If U.S. law requires companies to turn over data stored overseas, could that put Americans at risk to foreign countries demanding data held in the U.S.?

These are just some of the questions senators wrestled with during a May 24 hearing.

Brad Wiegmann, deputy assistant attorney general with the Department of Justice told senators that the solution is to return to the status quo before the Second Circuit ruling and to develop bilateral agreements with foreign countries to create frameworks for sharing data in law enforcement cases.

"We have explored how such an agreement would work with our partners in the U.K., and if the approach approves successful, we would consider it for other like-minded governments who respect the rule of law," Wiegmann said.

This approach would require legislation. Wiegmann noted in his prepared testimony that the  Wiretap Act, the Stored Communications Act and the Pen Register Statute would all have to be amended to support this policy shift.

Brad Smith, Microsoft's president and chief legal officer, testified that proposed bilateral agreements would solve the problem of foreign countries requesting data from the U.S., but he said simply returning to the pre-Second Circuit status quo does not adequately address cases where foreign laws prevent disclosure of data.

"These conflicts put technology companies in the impossible position of deciding whose law they will break," Smith said.

He added that in a year, the European Union will implement new data privacy regulations that would impose exorbitant fines on companies that disclose data held in the EU.

Smith argued that the DOJ's proposal seeks to create an international framework for the exchange of data, but the DOJ still wants to use unilateral, extraterritorial warrants.

"Countries that fear U.S. unilateral law enforcement action will seek to protect their citizens and their local service providers by localizing cloud services and data storage -- to the disadvantage of U.S. providers and U.S. law enforcement," he stated in his testimony.

"Instead the U.S. needs to consider the same framework for itself and demonstrate respect for borders and reciprocity with allies and friendly nations," he stated. "This isn't simple, but it's achievable."

Sen. Orrin Hatch (R-Utah) filed the International Communications Privacy Act  in 2016 in an attempt to solve the overseas data problem, but the legislation stalled. Hatch is preparing to file a revised version of the bill.

"My bill incorporates feedback from both law enforcement and privacy groups and is grounded on three principles: respect for other countries and their laws, international comity and reciprocity," said Hatch during a recent floor speech.

Under his legislation, the focus would be on the location of the suspect, and if that person is a U.S. citizen or located in the U.S., "then law enforcement may compel disclosure, no matter where the data is stored, provided the data is accessible from a U.S. computer and law enforcement uses proper criminal process."

"We believe ICPA is a solid foundation for a legislative framework," Microsoft's Smith said in his written testimony.