Since the dawn of the digital age, tech companies have grappled with the protection of privacy rights amid demands from foreign and domestic authorities seeking evidence for investigations.
Those competing pressures have meant a tricky balancing act—but Google’s top lawyer has some ideas for making it easier.
Google general counsel Kent Walker, speaking in Washington at the Heritage Foundation on Thursday, laid out what he called a “new framework” that would allow countries that commit to baseline privacy and human rights principles to more easily obtain digital evidence.
To date, Walker said, the flow of data between tech companies and foreign law enforcement has been governed by diplomatic agreements—mutual legal assistance treaties that often mean a government agency will wait many months to receive requested information.
Some countries, frustrated by the long wait for data, have asserted their laws apply to companies outside their borders, putting those companies in the “untenable position” of complying with a data request at the risk of violating the home country’s laws.
“Laws governing digital evidence are due for a fundamental realignment in light of the rapid growth of technology that relies on the cloud, the very real security threat to people and communities, and the expectations of privacy that internet users have in their communications,” Walker said Thursday.
Walker’s remarks come amid a quarrel between the U.S. Justice Department and Microsoft Corp. over the federal government’s demand that the company provide data that is stored on a server in Ireland.
A federal appeals court in January refused to reconsider an earlier ruling that said the requested data remained out of reach from the Justice Department. The panel decision last year was “a major victory for the protection of people’s privacy rights under their own laws rather than the reach of foreign governments,” Microsoft general counsel Brad Smith said then. The Justice Department faces a Friday deadline to file a petition in the U.S. Supreme Court.
Walker said the United States and foreign governments that respect privacy rights should forge alternative agreements to the mutual legal assistance treaties, commonly called MLATs. “Ultimately,” he said, “countries should have the opportunity to gather digital evidence directly from providers in ways that respect human rights and due process.”
“We don’t have to live with a system that not only fails to protect privacy but also impedes legitimate investigations,” Walker added. “We recognize that this will be an involved process. It will require action here in Washington and capitals around the world. However, we shouldn’t accept that the complexity of action is a reason for inaction. The stakes are too high, and the risks are too great.”
Walker endorsed a U.S. Justice Department proposal that would amend the Electronic Communications Privacy Act to authorize U.S. service providers to disclose records to foreign governments that adhere to “baseline due process, human rights, and privacy standards.”
Asked to define those baseline standards, Walker cautioned against being “prescriptive.” But, as examples, he said independent reviews of law enforcement requests and safeguards against overly broad investigations would be features of a country with proper respect for privacy rights.
Walker came out against a proposal in New Zealand that would allow the government to force companies outside of the country to disclose communications content. “We hope the government doesn’t go down that path, but if New Zealand were to issue that kind of legal demand to Google, we’d be put in the position of having to make a choice between U.S. law and New Zealand law,” Walker said. “You can see the untenable position that puts any law-abiding company in.”
Walker similarly voiced his opposition to proposals that would require companies to store data within local borders.
“Let’s be clear, these data localization regulations won’t benefit users in any meaningful respect. When it comes to storing data for consumer services, putting it in one country over another simply doesn’t make it more secure or more private,” he said.
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Source: Law Journal