WASHINGTON—Daniel Castro, vice president of the Information Technology and Innovation Foundation (ITIF), released the following statement regarding law enforcement access to data stored in the cloud. His comments come today as Microsoft appeals a 2014 decision requiring it to turn over its customer’s emails stored in an Irish data center to a U.S. law enforcement agency.
As more and more information is stored in the cloud, new questions are arising about how law enforcement agencies can and should gain access to that data. This issue is brought back into the spotlight again today with Microsoft’s appeal.
No matter how the case is decided, it could hurt U.S. tech competitiveness. If the court supports the use of search warrants to obtain data stored abroad, it will feed the perception that the best way to protect data from the prying eyes of the U.S. government is to store it overseas with a non-U.S. provider.As ITIF has documented, those fears will likely cost U.S. tech companies well over $35 billion by 2016. On the other hand, if the court rules that search warrants cannot be used overseas, foreign governments may try to force companies to store data within their borders to make it impossible for U.S. officials to execute a search warrant. This also damages U.S. tech competitiveness because barriers to the free flow of information across borders impede digital innovation.
But a search warrant is not the only method U.S. law enforcement officials could have used to get this information in the first place. They could have sought access using a Mutual Legal Assistance Treaty (MLAT)—an agreement for law enforcement agencies to assist their counterparts abroad. Unfortunately, law enforcement officials believe this process has become too “slow and cumbersome.”
The best path forward is for the U.S. government to improve the MLAT process and create a common global framework for lawful government access to data stored in the cloud, rather than pursue this lose-lose strategy of using search warrants. Improving the MLAT process would allow the United States to develop rules that would both meet the needs of law enforcement agencies operating in a digital world and keep the U.S. tech sector competitive globally. As ITIF has said time and again, by working to create a global intergovernmental data access pact, the United States can begin to reassure people at home and abroad that it respects privacy and civil liberties while also allowing the U.S. tech sector to thrive and not diminishing legitimate law enforcement capabilities.
