By SafeGov Contributor, Professor Daniel J. Solove.

The law regulating government surveillance and information gathering in the United States is in dire need of reform. This law, which consists of the Fourth Amendment and several statutes, was created largely in the 1970s and 1980s and has become woefully outdated. The result is that law enforcement officials and intelligence agencies can readily find ways to sidestep oversight and protections when engaging in surveillance and data collection.

The gaps in current law are powerfully demonstrated by a very important case being fought out in federal court – Microsoft v. United States. The Department of Justice (DOJ) convinced a federal court to issue a warrant to require Microsoft to turn over data it had stored in Ireland. Microsoft has fought the warrant. Microsoft argues that for government officials to obtain data in a foreign country, they must go through the Mutual Legal Assistance Treaty (MLAT) between that country and the United States. The case now sits before the U.S. Court of Appeals.

The case shows how existing laws are being outpaced by changing technology. With cloud computing, data can readily be stored in foreign countries, and Electronic Communications Privacy Act (ECPA) doesn’t really address the issue. The implications of the case are profound, affecting privacy protection in the cloud and the clash between the privacy laws of different nations. In Congress, a new bill has been introduced to address the issue – the Law Enforcement Access to Data Stored Abroad Act (LEADS Act) – which seeks to amend ECPA to prevent what the DOJ is attempting to do in this case.

If the U.S. government ignores foreign law when obtaining data abroad, then other countries might reciprocate by ignoring U.S. law. What if countries with weaker laws than the United States demanded information on U.S. citizens stored abroad? These countries might start ignoring U.S. protections and grab the data according to their own permissive rules.

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Daniel J. Solove is the John Marshall Harlan Research Professor of Law at the George Washington University Law School. Professor Solove is a regular contributor to SafeGov. He is also Senior Policy Advisor at Hogan Lovells. Additionally, he is the founder of TeachPrivacy, a company that provides privacy and security training.

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