A hearing was postponed this week with the title, “Law Enforcement Access to Data Stored Across Borders: Facilitating Cooperation and Protecting Rights.” Although the hearing title does not sound all that exciting, the hearing is expected to study and debate the future of cloud computing for all Americans. Center to the debate is the issue of whether you lose all privacy rights because your data is stored in a computer abroad.
The nature of cloud computing is that your data can end up anywhere. Some companies store data in “shards” where some are in one country, and some are in another country. Other companies have different cloud computing models where they store the data of persons in one data center that could be located domestically or abroad. For a consumer, that really should not matter, because the consumer reasonably expects privacy and they don’t care where the data is stored.
If you were born in the 90s, then you are a person who grew up in an age of accelerating technology. Phones went from flip to mini-computers. A good portion of communications via instant messaging and email is conducted over the phone. Consumers store thousands of pictures taken on phones that have migrated to cloud computing because of the size of the data. Most people do not think much about their pictures and data being stored in the cloud and may be migrated to servers in faraway nations because they still consider themselves the owners of that data.
The big issue that was supposed to be debated in that hearing is what happens to your data when it hits the cloud. Do you lose privacy protections when data moves abroad to foreign nations? When the government produces a warrant for data, how far would that warrant for the data reach? Logically a warrant ends at the water’s edge because that is where police jurisdiction ends and another sovereign nation’s laws begin.
Our Founding Fathers believed that the Constitution should recognize our right to privacy and many believe that the Revolutionary War was fought over a general warrant issued by the King of England. James Otis was the inspiration for the 4th Amendment that recognizes our natural right to privacy in our “papers” at home that is now commonly understood to encompass our emails and photos that migrate to the cloud.
Microsoft is in a battle with the Justice Department over this very issue in a case that may make its way to the Supreme Court. The issue, in that case, is a warrant in a drug case where data was stored in Ireland. This case will impact not only Microsoft but all the big tech companies like Google and Facebook.
The Justice Department is pushing the idea that companies own your emails and photos, yet the tech companies argue that a warrant must be served on the person who created the data. There is an exception for national security issues where life and death are at stake, but the Justice Department is pushing an idea that would make it far easier for them to get data in common cases.
Michael Chertoff, former Secretary of Homeland Security under President George W. Bush, made the case in The Hill this week and proposed a solution to the challenge of that case that includes the following element:
“The US should be obliged, where reasonably possible, to determine the nationality of the person who is the subject of the investigation and, if we have an existing and efficient law enforcement cooperation agreement with the country of which the subject is a citizen, we should use the mechanisms of that agreement instead of acting unilaterally to secure digital data.”
Chertoff also referenced that these rules should be reciprocal and we should avoid engaging in agreements with nations that we know are going to try to take advantage of them. In other words, engaging in this type of an agreement with North Korea or Russia would seem to be folly, because it is not likely that those countries would send us data when we really need it. Yet with democracies like Germany and England, these agreements make more sense because of a respect for the rule of law.
As part of the younger generation in America, we have grown up with cell phones, emails, and the cloud, there is an expectation that our data is protected and that our government does not spy on us. We also expect our leaders to follow the established laws and respect our privacy. Anything less than that is un-American.