The United States is aggressively championing the extraterritorial use of search warrants for speculative gains in law enforcement.
It should be careful of what it is wishing for. It might get it, and trigger an epidemic of international headaches from tyrannical and democratic foreign nations alike demanding access to electronic information about their citizens stored in the United States.
In a case pending before the United States Court of Appeals for the Second Circuit, United States v. Microsoft, the government seeks to compel Microsoft to produce emails located on servers in Dublin, Ireland under the obsolete Electronic Communications Privacy Act of 1986. The United States is insisting on production even if it means Microsoft would be required to violate Irish privacy laws.
Globalization has not diminished the territorial imperative. Every nation seeks to protect its borders and sovereignty. No nation will brook interference with its domestic jurisdiction from another sovereign without demanding reciprocity. If the United States authorizes extraterritorial search warrants to obtain electronic information stored abroad, other nations soon follow our instruction.
It is already happening in embryo in Great Britain. Parliament has under consideration an Investigatory Powers Bill. It would compel companies to produce information demanded by search warrants wherever they are based and wherever their data is stored. The U.K. argues that such extraterritorial authority is vital in an age when criminals and terrorists commonly use communications platforms in other countries. That argument is echoed by the United States in Microsoft.
But government claims of an urgent need should not be taken at face value. The United States argued that three counterterrorism laws were cornerstones to thwarting al Qaeda or sister terrorist organizations: Alien Terrorist Removal Procedures, 8 U.S.C. 1531 et seq.; section 412 of the Patriot Act, 8 U.S.C. 1226a (mandating detention of aliens who are certified as national security threats pending removal proceedings); and, the lone-wolf amendment to the Foreign Intelligence Surveillance Act, 50 U.S.C. 1801(b) (1) (C). None of the three has ever been used.
In May 2015, the Inspector General of the Department of Justice, Michael E. Horowitz, evaluated use of new business records authority of the FBI under section 215 of the Patriot Act. He concluded: “The agents we interviewed did not identify any major case developments that resulted from use of the records obtained in response to Section 215 orders.” They viewed the material they gathered only as “valuable” in developing other leads or corroborating information.
Plane passengers thwarted Shoe Bomber Richard Reid and Christmas Day terrorist Umar Farouk Abdulmutallab. Intelligence played no role.
In free countries, the right to privacy should not yield to highly speculative and undocumented theories of law enforcement benefits. That is especially true on the international stage where reciprocity is the norm irrespective of whether a nation’s government obeys the rule of law or is lawless.
Suppose the United States prevails in the Microsoft litigation, and suppose Great Britain enacts the Investigatory Powers Bill. Is there any doubt that Russian President Vladimir Putin and Chinese President Xi Jinping would immediately demand the right to compel production of electronic information about their dissidents stored in the United States or Great Britain for unsavory purposes?
We should not open ourselves to complicity in the suppression of democracy and human rights abroad for a miniscule law enforcement advantage to us.
That does not mean that nothing can be done to enhance international collaboration. Mutual Legal Assistance Treaties (MLAT) are a time-honored instrument for government-to-government sharing of evidence relevant to criminal cases or other government investigations. They can be custom tailored to avoid implicating the United States in the oppressions of many foreign governments, for example, carving out political offense or human rights exceptions.
In sum, the United States has not made a convincing case for extraterritorial search warrants. It should withdraw its effort to compel Microsoft to produce electronic information stored in Ireland, and go work on improving its MLATs.