Lead-Footed Electronic Privacy Law Races After Mercury-Footed Technology

Lead-footed law is chronically racing after mercury-footed, globalized technology -- especially in the field of electronic privacy and law enforcement.

The race is never won, but keeping the law within shouting distance of the latest technology is still a commendable achievement.

On that score, the Law Enforcement Access to Data Stored Abroad Act (LEADS), introduced in both the House and Senate, deserves applause for protecting the rights of citizens to be let alone from United States government snooping into their digitized communications anywhere in the world. To search or seize such electronic communications, LEADS would require that the United States government obtain judicial warrants based on probable cause that the contents have a nexus to criminality. But LEADS needs further thinking to address the difficulties of extraterritorial enforcement of search warrants in 200 separate sovereign states with uneven devotion to the rule of law.

The Electronic Communications Privacy Act of 1986 granted Fourth Amendment protection to email content stored for 180 days or less, which was then the industry and customer norm. Emails stored for a longer period could be searched and seized by the government without judicial warrants or probable cause. Technological advances since 1986 have made email storage for years the norm. LEADS would thus erase ECPA's 180 day distinction to conform to the new storage technology. Search warrants based on probable cause would be necessary to search or seize the contents of any email of whatever duration.

Globalization and technological leaps since EPCA have created problems for United States law enforcement in foreign jurisdictions. Evidence of criminal activity implicating United States persons is often stored or possessed abroad. They should not be permitted to circumvent criminal prosecuton simply by having or the happenstance of electronic evidence of their criminality stored in foreign countries. On the other hand, a citizen's Fourth Amendment privacy protections for email content should not be diluted simply because it is housed in a foreign jurisdiction. LEADS seeks to answer both concerns by generally authorizing federal magistrates to issue warrants that satisfy the Fourth Amendment to be executed abroad. But a gaping exception seems to frustrate that warrant authority-making it as illusory as a munificent bequest in a pauper's will.

Compliance with a LEADS warrant is excused if foreign law prohibits it. Little political imagination is required to predict that Internet companies will lobby foreign governments to enact or decree such prohibitory laws to bolster the privacy protections of their customers. it has become an acute business concern in the aftermath of the Edward Snowden disclosures of ubiquitous National Security Agency surveillance.

Even absent an Internet lobby juggernaut, foreign countries may prohibit compliance with LEADS warrants to avoid an appearance of subserviency. In response to extraterritorial application of United States antitrust laws, Great Britain, France, Australia, and Canada enacted blocking statutes that prohibit compliance with United States investigatory demands. Even if some foreign nations desisted from enacting or promulgating prohibitory laws, electronic storage would then migrate to sister jurisdictions that did so.

The United States might attempt to elicit foreign cooperation in the enforcement of LEADS warrants by negotiating reciprocity via an international convention or bilateral treaties. Reciprocity would encourage foreign nations to refrain from enacting prohibitions on compliance. But it would also mean that despotic nations like China, Russia, North Korea, etc. would be entitled to have their "lawless" judicial warrants enforced in the United States to gather information to persecute dissidents or other regime opponents. We would become complicit in the violation of fundamental human rights and the strengthening of tyranny abroad.

There is no obvious answer to enforcing LEADS warrants in foreign jurisdictions. But LEADS usefully begins the conversation.