WASHINGTON—The Information Technology and Innovation Foundation (ITIF), the United States’ leading science- and tech-policy think tank, today released the following statement from Daniel Castro, vice president at ITIF, on Senators Orrin Hatch and Chris Coons’ introduction of the International Communications Privacy Act (ICPA):
We applaud Senators Hatch and Coons for their important contribution to reforming how law enforcement balances access to data overseas with consumer privacy and the data privacy laws of other nations. ICPA proposes several reforms that ITIF has previously argued are crucial, including reforming the Mutual Legal Assistance Treaty (MLAT) process to create greater accessibility, transparency, and accountability; establishing an online docketing system for MLAT requests and publishing statistics on those requests; and issuing a sense of Congress that data providers should not be subject to data localization requirements.
Although ICPA is a step toward reforming overseas data access by law enforcement, we urge Congress to make several changes before this bill becomes law. In particular, it should not attempt to exert extra-territorial authority over data as other nations will likely strike back with similar laws that create jurisdictional conflicts. A better approach to avoid these types of conflicts over the long-term is to establish a common set of principles with other nations for deciding which country has jurisdiction over a given piece of data when the data, the data subject, and the company holding the data may all be in different countries. This is a policy challenge that the U.S. cannot resolve on its own and will require international cooperation.
We do not need to make a tradeoff between protecting consumer privacy and upholding the rule of law. ICPA, although not yet ready for passage, recognizes the need for reforms to outdated laws that are frustrating legitimate law enforcement investigations. As this bill is marked up, we look forward to working with members of Congress on these important issues.
For more details on ITIF’s proposed reforms, see: How Law Enforcement Should Access Data Across Borders (July 2017).