On September 9 the Second Circuit Court of Appeals in New York will hear oral arguments for the Microsoft v. United States case. This case concerns a Department of Justice warrant for electronic mail legally served on Microsoft Corporation at its headquarters in Redmond in the course of an investigation of illegal narcotics. The email is believed to reside on its technical servers located physically in the Republic of Ireland. The Department of Justice briefs argue that the Ireland factor is a distinction without a difference. Microsoft has refused to honor the warrant and instead has fought compliance in court. As a defense, the company holds that the law, the Electronic Communications Privacy Act (or ECPA), operates only in the United States. On the basis of existing jurisdictional scope, Microsoft expects to prevail.
If one believes, as I do, that all existing law applies to the Internet until it doesn’t, then this case is also a prime example of the complicated intersection of law, technology and policy and a case where new law need be made in the name of enduring Constitutional values.
What does “all existing law applies until it doesn’t” mean? Just because a technology allows for easy access to communications data does not mean that that by law the government has an automatic right to do it. What makes the Internet such a historically powerful force is that it creates a dynamic whereby so many factors -- law, social norms, technology and the market -- inter-operate at different pressure points, at various moments and with multi-dimensional effects. When those technical and market effects are in conflict with enduring Constitutional social norms, it is time to remedy the conflict by creating new law that reflects traditional values.
The government’s brief, which builds on case law not concerning the Internet, echoes Frank Easterbrook’s philosophy of the “Law of the Horse.” No new law need be made to accommodate the Internet. Inherently this position contradicts the essential precedential nature of Anglo-American law, which balances culture and tradition with the impact of new circumstances. For too long now, at least since September 11, the U.S. government has operated on the premise of either holding electronic surveillance law steady or lowering its Constitutional thresholds while it takes full advantage of the technological access. This week's New York Times report on the Internet surveillance via the AT&T network further underscores the point. Our civil liberties hang in the balance as citizens are asked to accept a compromise of our Constitutional values in the name of national security. That response presupposes a political formula as if it were zero-sum in game theory. It is not. Not only are our Constitutional values compromised, our national security is at risk.
The historical fact that the United States government, under its Department of Defense, and now its Department of Commerce, developed the technical protocols and early network system for the Internet, and continues to maintain control over its root servers that align names and numbers, does not give the government license to act as if represents law enforcement globally. Promises to shift oversight of the Internet from the ICANN, formed as a result of Department of Commerce direction, to international oversight continues to be held out in abeyance. These maneuvers prompt the frustration and anger of our allies, such as Ireland, and feeds the ambitions of Russia, China and many countries in the Middle East and Africa.
The United States, with its rich tradition asserting a rule of law historically around the globe, should be investing heavily in international negotiations to work out treaties and perhaps even help to create adjudicative bodies to harmonize legal access around the globe and resolve conflicts that arise from the Internet. The United States government should not act as if it owns the whole place. That kind of attitude, which is what undergirds this legal demand in the Microsoft case, is precisely the presumptive arrogance that creates the self-fulfilling prophecy of counterproductive international push back on the United States. Our “enemies,” as well as our competitors, use it to their strategic advantage against us.
U.S. electronic surveillance law and practice rounds out this point. ECPA is U.S. domestic wiretapping law. Promulgated before the public Internet in 1986, it has long been in need of revision, a point I have hammered to death in this blog space. The USA-Patriot Act amended ECPA and the Foreign Intelligence Surveillance Act (FISA) – the wiretapping law designed to address foreigners or those outside of the United States -- to lower the bar by which law enforcement has access to electronic communications. FISA was further amended in 2008 to reinforce that point, especially in collection of telephone metadata. As I have further argued in this space, N.S.A. practices have effectively collapsed foreign and domestic surveillance. The Snowden disclosures revealed as much. Today we learned it extends to electronic mail on the Internet. As I have argued in a recent post, this conflation of the domestic and foreign surveillance law, together with use of sophisticated algorithms that render metadata the equivalent of content, is killing the Fourth Amendment in cyberspace. A finding for the Department of Justice in the Microsoft case will be yet another nail in the coffin.
With the A.C.L.U. case already under its belt in the name of civil liberties, the Second Circuit should find for Microsoft using existing law. To do so would also send the right signal from the judiciary to Congress that it really is time to amend ECPA, repeal FISA, and pass intermediate legislation such as the LEADS Act to at least keep the Fourth Amendment afloat under the terms extra-jurisdictional legal requests. The United States must look creatively forward to ratifying treaties and other legal instruments that would bring a judicious rule of law to legal access of electronic information internationally. But our country cannot do so with a straight face until it sets its own house right. Let us find a path back to the basics of civil liberties established by our Founding Fathers. And let’s us do so in the name of both civil liberties and national defense.
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