As we remain stubbornly nation-oriented (yeah, the blue helmets aren’t invading anytime soon), the Internet brings tough questions about crimes in which the Internet may contain important evidence. The Obama Administration recently brought forth suggested legislation, and Jennifer Daskal and Andrew K. Woods of Just Security (via Lawfare) cover it:
Enter the draft legislation. The legislation would permit the President to enter into agreements with foreign countries whereby US firms would no longer be prohibited, as a matter of US law, from responding to local law enforcement demands for emails and other communications in the investigation of serious crime. Importantly, the legislation sets numerous human rights and privacy-protective restrictions on what these agreements would look like. These agreements would only be permitted with foreign governments that afford “robust substantive and procedural protections for privacy and civil liberties” —a determination that takes into account, among other things, compliance with human rights obligations and respect for the principle of non-discrimination.
Moreover, the orders issued pursuant to the agreement must meet numerous requirements—including that the requests be tailored to a specific account, person, or device, of limited duration, and based on articulable and credible suspicion. The requests must be overseen by a judge or other independent authority, may not be used to infringe freedom of speech, and are subject to a strict prohibition on the dissemination of non-relevant information unless necessary to protect against the threat of death or serious bodily harm. These requirements apply at the request level—that is, each request by the foreign country must meet these standards.
Later:
This is, in sum, a remarkable effort by the administration to lay out, in great detail, a set of baseline privacy protections that apply to law enforcement access to data. Imagine, for a moment, that countries around the world implemented these requirements. We would see a significant enhancement of privacy protections globally.
The whole article is worth a quick read. Judging from the summary presented, this seems like a careful, workmanlike approach to the problem. In their judgment, it’s not perfect – but that’s for legislators to fix.
I can’t help but wonder if Trump and Clinton have – or will – endorse what appears to be thoughtful, careful legislative initiative.
