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FCW : July 30, 2015
JULIE M. ANDERSON is a principal at AG Strategy Group. Commentary | JULIE M. ANDERSON WikiLeaks’ recent release of inter- country espionage records once again highlighted concerns about government surveillance practices and individual privacy. In the time since the original WikiLeaks and Edward Snowden scandals, many countries, media organizations and privacy advocates have cried out for changes to current practices. And although the U.S. government recently took steps to change surveil- lance programs and shore up privacy protections, much work remains in reforming domestic laws and inter- national treaties that govern informa- tion exchange among countries. Congress passed the USA Free- dom Act in June in the most recent federal action to change surveillance practices. Most notably, the law ended the bulk collection of data, one of the most contentious surveil- lance programs undertaken after the 2001 terrorist attacks. It also reforms some surveillance laws by creat- ing added transparency and greater accountability for government. The law is not without contro- versy, however. Fierce congressional debate was punctuated by a coali- tion of technology companies and government agencies advocating for its passage. Some privacy advocates strongly opposed the bill, and others offered only tepid support. Despite those recent efforts, one of the highest-profile cases related to surveillance practices remains unre- solved. The “Microsoft Ireland” case, initiated in 2013, asks a larger ques- tion: Can a U.S. law enforcement agency compel a U.S. communica- tions provider to turn over digital information that is stored in a loca- tion outside the U.S.? The USA Free- dom Act does not directly address the issues raised by that case. There are two things the U.S. can do to demonstrate its leadership on these issues and enable law enforce- ment to fulfill its mission while protecting individual privacy. On its own, each action is necessary but not sufficient. • First, Congress should pass the Law Enforcement Access to Data Stored Abroad Act. The rules governing law enforcement’s access to communications are almost 30 years old; they were passed long before the advent of email and cloud computing. The LEADS Act clarifies that U.S. warrants do not apply to email messages of non-U.S. citizens that are stored in other countries. The legislation is a bipartisan oppor- tunity to improve international law enforcement practices while protect- ing the privacy of individuals. To date, companion bills with co-sponsors from both parties have been introduced in the House and the Senate. • Second, the U.S. should lead the effort to reform mutual legal assistance treaties with other countries. Reforming U.S. law isn’t enough. The international processes need to change to support the reality of transnational threats. As a long- established process, MLATs govern how countries share information sought by law enforcement agencies. To be sure, the processes are antiquated and slow, particularly given the pace at which electronic communication now operates. But there are long-standing cooperative relationships between countries that should be preserved. Instead of throwing out the MLAT process or circumventing it, new processes should be designed to update the existing rules. Congress and the executive branch have a tall order in enact- ing those reforms. However, if the U.S. fails to assert its international leadership role, national security and individual privacy could continue to suffer. The game theory of interna- tional cooperation means that if we violate the rights of other countries by accessing the correspondence of their citizens, other countries may do the same to us. Updating the rules will allow us to preserve our alliances with other countries, which will, in turn, benefit law enforcement and individual privacy. n U.S. must do more to protect privacy The government’s latest effort on surveillance reform is a good step, but now it’s time to work on the rules for international information exchange If the U.S. fails to assert its international leadership role, national security and individual privacy could continue to suffer. 14 July 30, 2015 FCW.COM 0730fcw_014.indd 14 7/15/15 8:55 AM
July 15, 2015
August 15, 2015