Department of Justice Incorrigibly Scorns Privacy

Department of Justice Incorrigibly Scorns Privacy
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The United States Department of Justice should quit summoning the judicial branch to interpret ill-fitting and antiquated laws to invade electronic privacy. It should address its concerns to Congress as the Constitution dictates.

On October13, 2016, the Department filed a petition for rehearing and rehearing en banc from a three-judge panel decision of the United States Court of Appeals for the Second Circuit in Microsoft Corporation v .United States (July 14, 2016). The panel refused to interpret the superannuated 1986 Storage Communications Act (SCA) to compel Microsoft to hand over subscriber emails stored in Ireland. Previously, the Department invoked the ancient 1789 All Writs Act in seeking to compel Apple to write software to enable the FBI to unlock the cell phone possessed by the San Bernardino dead terrorist murderer, Syed Rizwan Farook. (The Department dropped the litigation after paying over $1 million to a company to unlock the iPhone. The contents revealed no connection between Farook and ISIS).

Congress, however, is the constitutionally designated branch for fashioning laws that optimally balance the cherished right to be let alone against reasonable law enforcement needs. The inherent Executive Branch personality favors law enforcement over privacy because that bias is politically irresistible. Congress funds and the public grades the DOJ based on the number of prosecutions or convictions, not on the degree to which it respects privacy. Thus, DOJ chronically slights Supreme Court Justice Louis D. Brandeis' teaching in Olmstead v. United States (1928) (dissenting):

"They [the Constitution's authors] conferred, as against the Government, the right to be let alone--the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment."

In its rehearing petition, the DOJ argues that the panel "has substantially impaired law enforcement's ability to use a vital tool to investigate and prosecute all types of serious crime--including terrorism, public corruption, cyber-crime, securities fraud, child sexual exploitation, and major narcotics trafficking...." But the DOJ is unable to reference any jump in the incidence of such crimes post-dating the Microsoft decision. DOJ further contends that its aggressive interpretation of the SCA implements "the express will of Congress." But if that were true, Congress would be racing to overrule the Microsoft decision to embrace DOJ's interpretation of the SCA.

Instead, Congress is contemplating a bill co-sponsored by Senator Orrin Hatch (R-Utah), Senator Christopher Coons (D. Conn.), Representative Tom Marino (R-PA), and Representative Suzan DelBene (D-WA). Entitled the "International Communications Privacy Act," the legislation strikes a centrist balance between the Microsoft decision and DOJ. The ICPA distinguishes between search warrants seeking the contents of electronic communications stored abroad concerning U.S. persons as opposed to foreign citizens. As to the former, the ICPA would authorize the extraterritorial reach of a search warrant based upon probable cause and the particularity required by the Fourth Amendment. The privacy rights of United States citizens would be safeguarded whether or not their electronic communications are stored abroad.

Foreign sovereigns, however, may provide greater privacy to contents of electronic communications of their citizens than are available to them under the United States Constitution. The Supreme Court held in United States v. Verdugo-Urquidez, 494 U.S. 259 (1990), that the Fourth Amendment does not apply to foreign citizens located abroad. ICPA indulges international comity by prohibiting United States search warrants for the contents of electronic communications stored abroad of foreign nationals also located abroad if the foreign jurisdiction has a Law Enforcement Cooperation Agreement with the United States; or, if the foreign jurisdiction consents to disclosure.

The DOJ should honor constitutional processes. It should cease its efforts to enlist the third branch to amend the SCA through inventive interpretations and collaborate with Congress to perfect the ICPA. The government is victorious whenever it salutes the Constitution.

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