As computer and communications technology have marched forward over the years, the laws governing their use, including the Electronic Communications Privacy Act (ECPA), have come to be in need of modernizing and reforming. The International Communications Privacy Act (ICPA), sponsored in the Senate by Sens. Orrin Hatch (R-UT), Chris Coons (D-DE) and Dean Heller (R-NV) in May of this year, will do exactly that. House Speaker Paul Ryan (R-WI), Senate Majority Leader Mitch McConnell (R-KY) as well as Sens. Chuck Grassley (R-IA) and Patrick Leahy (D-VT), the Chairman and Ranking Member of the Senate Judiciary Committee respectively, have been actively involved in the process of creating this legislation.
ICPA will protect international data privacy while establishing a legal framework for law enforcement access to extraterritorial communications. The legislation will strike a key balance that safeguards consumer privacy while also assuring law enforcement need for access to certain communications via satisfying the requirements of a warrant.
“It is past time for Congress to modernize the outdated Electronic Communications Privacy Act. As we do so, lawmakers must not ignore the pressing issue of international data privacy and the need for Congress to establish a legal framework for accessing extraterritorial communications,” Sen. Hatch stated, “The global reach of government warrant authority has significant implications for multinational businesses and their customers. The International Communications Privacy Act aids law enforcement while safeguarding consumer privacy, striking a much-needed balance in today’s data-driven economy.”
ICPA will create a clear legal framework for authorizing law enforcement to obtain electronic communications of U.S. persons regardless of the location of those communications. It will also allow, when needed, law enforcement to access electronic communications of foreign nationals.
“In an increasingly globalized world, protecting data stored abroad is critical to our country’s ability to compete in the global economy. Just like law enforcement agencies should be required to get a warrant before accessing the content of Americans’ communications within our borders, processes for accessing content located abroad should also comply with the law. This common-sense bill will protect our data across borders, and encourage fair treatment by our international partners,” Sen. Coons stated about ICPA.
The legislation will also reform the Mutual Legal Assistance Treaty (MLAT) process by providing great accessibility, transparency, and accountability. It will require the Attorney General to create an online docketing system for MLAT requests while also publishing new statistics on the number of those requests. ICPA establishes a sense of Congress that data providers should not be subject to data localization requirements, which are incompatible with the borderless nature of the Internet, and are an impediment to online innovation, and are also unnecessary to meet the needs of law enforcement.
“The world is becoming more dependent on broadband internet by the minute. As this technological necessity continues to expand its role in our society, it is imperative the guaranteed rights of law-abiding citizens are balanced against the ability for law enforcement to do its job,” Sen. Heller stated, “I’m proud to join Senators Hatch and Coons to achieve this goal.”
ICPA changes the law in four key areas that benefits law enforcement. First, it allows law enforcement access to electronic communications on behalf of U.S. persons regardless of where the data is stored. ECPA did not intend for warrants to be served on data providers who stored data across national borders. The legislation also strengthens law enforcement ability to obtain data on behalf of non-U.S. Persons who are physically present in the U.S. regardless of the location of the data. IPCA also modernizes and provides for a more efficient MLAT process. Also, the legislation requires a warrant process for obtaining any electronic communications stored by service providers, regardless of the age of the data, eliminating the 180 day limit. This has no practical effect on law enforcement because most major providers today follow the Sixth Circuit’s Warshak decision and require law enforcement to provide a warrant.
Overall, ICPA will strengthen consumer privacy while facilitating proper and balanced law enforcement access to data when needed via the requirements of the warrant process. Technology has changed, and our law governing its use also need to be modernized.