Congressional Action Sought To Address Jurisdictional Questions Raised by International Data Storage
It's time for Congress to address the application of U.S. law enforcement jurisdiction on cases of foreign data storage and the applicability of issued warrants, said Internet and privacy experts Tuesday. At an American Enterprise Institute event, panelists differed on the ongoing case in the 2nd U.S. Circuit Court of Appeals in New York (see 1406250084), which involves Microsoft's challenge of the U.S. government's ability to access data stored outside the country using a warrant issued in America. But panelists agreed Congress, and possibly the executive branch, should get involved and attempt to resolve some of the underlying issues raised by the case.
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"However the court decides the case, it is undoubtedly the time for Congress to act," said Viet Dinh of Bancroft, counsel to Microsoft. "[It’s] not just about whether we need a warrant in order to access content, and it’s not just about in what territory does the data reside." Once the question is answered as to in which territory the data resides, said Dinh, that only raises the question of "how do we resolve the conflicts among territories because all data is interjurisdictional and potentially global?" Dinh said determining that the point of data access is the point of its residence doesn't solve the larger problems. "What happens if a foreign country requires all persons doing business in that country to have [access points] in that country?" he said. "Do we then block access to U.S. data from that point of access? Maybe, maybe not." The ruling in the pending Microsoft case will only raise these questions, not provide the answers, said Dinh. "However the courts decide, the legislature will have to make practical sense out of it."
Greg Nojeim, Center for Democracy and Technology senior counsel, said Microsoft should prevail in its case against the Department of Justice, and U.S. warrants shouldn't reach data stored outside the country. Nojeim said he worries that if the courts rule against Microsoft and decide the government can use a warrant to collect data stored in other nations, foreign countries then will employ the same strategy. "If U.S. warrants work to compel providers to disclose content that is stored outside the U.S., you can bet foreign governments are going to come knocking on our door and say that their warrants work to compel disclosure of your information or of their nationals' information," he said. Compared with the rest of the world, Nojeim said, the U.S. has better rules on the issuance of warrants and data collection. "Microsoft ought to win because we don't want this extra-territorial application" of a ruling allowing for the collection of data stored in the U.S., said Nojeim.
Jennifer Daskal, American University assistant law professor, said the positions of Microsoft or the U.S. government aren't sufficient, and the executive branch, not just Congress, should be addressing the issue. If Microsoft wins, said Daskal, it provides an incentive for data localization laws that have costs to the efficiency of the Internet and to cloud computing in general. "It just doesn't make sense that data location should be determinative of the rules that apply," she said. But Daskal said the government's position has "huge problems" as well: "It's the beginning of the end of sovereign control over data."
Most panelists agreed a joint approach to rules on governance of data stored on foreign soil might be necessary, but disagreed how that approach should be carried out. "We are not going to get an international treaty, signed by 180 countries, at least not in the near future," said Bryan Cunningham, Chertoff Group senior advisor. "What we should be doing is working with our closest allies that have the closest types of judicial protections to what we have even if they are not the same, and incrementally getting these bilateral agreements and setting the standard." Daskal suggested a similar approach. "My suggestion is that the executive branch really start to work in a bilateral and possibly small, multi-lateral basis with key allies in trying to come up with the rules," she said.