Congress Shouldn’t Let Court Legislate Away Email Privacy

Last month, the Supreme Court granted the government’s petition for a review of Microsoft’s Irish warrant case, which centers around the question of whether the government can issue a warrant to internet service providers to obtain emails stored on servers abroad. This issue has such far-reaching ramifications that whatever decision the court makes will surely result in far more than a mere interpretation of the law, but rather what the late legal theorist, Robert Bork, and his philosophical heirs term “legislation from the bench.” Instead of allowing the court to usurp the prerogative of Congress, legislators should consider the International Communications Privacy Act (ICPA), which would create the sort of legal clarity regarding the treatment of emails stored on extraterritorial servers that already exists for similarly stored older mediums of communication like paper letters.

The government does not have the power to unilaterally carry out an extraterritorial physical search and seizure, so when evidence from abroad is sought, the government must follow procedures outlined under Mutual Legal Assistance Treaties (MLATs). The government’s stance in Microsoft’s Irish warrant case is that its ability to assert jurisdiction over emails stored abroad should be legally treated differently from its ability to assert jurisdiction over paper letters similarly located. If the court rules in the government’s favor, it would make criminal investigations considerably easier for the government, but it would come at a great cost to the privacy of American consumers, companies, and even foreigners.

Essentially, in this case the government is soliciting the court to grant it new powers by lumping email into the scope of The Stored Communications Act, which was signed into law in 1986 and was never intended to address the dynamics and implications of modern communication technology and norms. When James Madison said that “there are more instances of the abridgment of the freedom of the people by gradual and silent encroachments of those in power, than by violent and sudden usurpations,” he was speaking of an instance precisely like this. It’s a matter of law so abstruse that the majority of Americans would take no notice if the government triumphs, yet it would have such extensive ramifications that it would deeply corrode the normal protections and legal clarity associated with extraterritorial communications that have been existent for hundreds of years.

The Government’s position barters communications privacy and respect for the sovereignty of other countries, including our closest allies, in exchange for investigatory ease. A ruling in the government’s favor would be tantamount to a declaration of disregard for the laws of other nations and would likely embolden them to follow our example. It would be supremely irresponsible for Congress to do nothing.

ICPA, a bill which has been bounced around and continually amended, was recently reintroduced by Senators Orrin Hatch (R-UT) and Chris Coons (D-DL), and given a vote of confidence in a letter addressed to the House and Senate Judiciary Committees authored by organizations including Americans for Tax Reform, the R Street Institute, and the Competitive Enterprise Institute. If it becomes law, it would amend the federal criminal code to allow the government to compel providers of electronic communication services to release emails stored abroad only if the court finds that all reasonable steps to establish the nationality and location of the individual whose emails are sought, are taken. Furthermore, it would improve the MLAT process by requiring the Attorney General to provide an online docketing system for MLAT requests and publish publicly available statistics regarding such requests.

Fundamentally, ICPA would maintain communications privacy, clarify law enforcement’s right and ability to issue warrants for emails, and ensure that the government doesn’t inadvertently infringe on the privacy of foreigners. Additionally, rather than trampling on the laws of other nations, we would be erecting an example of innovative yet just legislation that other countries could adopt to likewise navigate the haze of a hurriedly evolving digital landscape.

This is a legislative responsibility that Congress must find tempting to shirk; after all, it’s in the government’s interest to make its investigations easier, and it’s not as if inaction on this matter would ever become a scandal that could imperil a legislator’s electoral odds. Yet, it remains the responsibility of Congress to act as a check on the judicial branch and to represent the interests of an American citizenry accustomed to communicating by email. Whether Congress decides to support ICPA or abandons this matter to the whims of unelected judges will be a test of legislators’ commitment to the spirit of the separation of powers and their support for unambiguous laws that favor privacy over investigatory expedience.

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