By Julie M. Anderson It’s that time of the year again. The 2016 campaign season just kicked off with the Republican presidential primary debates earlier this month. Notably, the primetime debate included exchanges between Sen. Rand Paul and Gov. Chris Christie on the seemingly esoteric topic of data surveillance. Christie criticized the senator’s support for reducing the National Security Agency’s surveillance authorities. And earlier that evening at the undercard debate, Carly Fiorina discussed the challenge of balancing data encryption and law enforcement’s access to data, noting that tech companies need to cooperate more with law enforcement moving forward.
These debates took place in the post-Snowden era where governments face growing concerns about data privacy and strained international relations. While candidates in 2008 and 2012 did not address these issues on the campaign trail, their new prevalence shows that the American public is now more aware of and concerned about data privacy and security. Now more than ever, our next president and representatives in Congress must put forth a clear framework to uphold the rule of law and protect individual privacy and national security.
Enacting Policy to Protect Privacy The administration and privacy advocates alike have taken offensive and defensive actions over the past six years to address the changing landscape. Earlier this year, a petition calling on Congress and the president to reform the Electronic Communications Privacy Act, which allows law enforcement to access metadata without a warrant, gathered more than 100,000 signatures. The administration has yet to respond.
However, the government recently took steps to revise its surveillance programs and shore up privacy protections. In early June, Congress passed the Freedom Act – the first step in striking a balance between preserving personal privacy while supporting national security and law enforcement activities. Notably, the law ended the bulk collection of data – one of the most contentious surveillance programs undertaken after September 11th – and increased government transparency and accountability. Additionally, the Law Enforcement Access to Data Stored Abroad Act was introduced in both the Senate and the House. The legislation seeks to update ECPA and put tighter limits on when and how U.S. courts can access private electronic data stored abroad. The LEADS Act, which carries bipartisan Congressional support, gives us the opportunity to improve international law enforcement practices while protecting the privacy of individuals.
Despite these efforts, much work remains to reform the laws that govern data-sharing.
Technology Has Outpaced the Law One of the highest-profile cases related to surveillance practices remains unresolved. The Microsoft search warrant case, which was initiated in late 2013, raises a larger question: can a U.S. law enforcement agency compel a U.S. technology provider to turn over digital information that resides in a location outside the U.S.? Current law, the Freedom Act included, does not directly address the essential issues raised in this case, which are weighty enough to merit the attention of presidential candidates and Congress, as well as the Supreme Court. However, the LEADS Act, if passed, would help to clarify the currently murky landscape, by ensuring that policy keeps pace with technology. While the world continues to become more interconnected, geopolitical borders remain significant. A consistent and transparent rule of law regarding cross-border information-sharing must be our North Star.
U.S. Leadership on Privacy a Necessity Congress and our next president face an increasingly complex and fast-paced security environment. The heightened public debate on these issues underscores the need to update our laws, through measures such as the LEADS Act, and ensure we take advantage of modern ways of exchanging information while respecting longstanding privacy agreements. These issues will have a lasting effect not only in terms of how we treat our citizens’ data, but also in terms of our ability to partner with the rest of the world. To meet these challenges, our next leaders need to establish a clear and consistent framework that preserves individual privacy, supports national security, and preserves our alliances with other countries.
Decisions made on these issues will affect the future of the global technology industry. Congress and our next president have the opportunity to demonstrate U.S. leadership on technology and privacy issues around the world. Let’s elect leaders who will address these issues head-on.
Julie M. Anderson is a principal at AG Strategy Group.
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