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Proposed Law Would Limit US Search Warrants For Data Stored Abroad
An anonymous reader writes On Thursday, a bipartisan law was introduced in the Senate that would limit US law enforcement's ability to obtain user data from US companies with servers physically located abroad. Law enforcement would still be able to gain access to those servers with a US warrant, but the warrant would be limited to data belonging to US citizens. This bill, called the LEADS Act (PDF), addresses concerns by the likes of Microsoft and other tech giants that worry about the impact law enforcement over-reach will have on their global businesses. Critics remain skeptical: "we are concerned about how the provision authorizing long-arm warrants for the accounts of US persons would be administered, and whether we could reasonably expect reciprocity from other nations on such an approach."
horse.
Say a friend sets up a Google Drive account in Albania, and I add content there.Would that data be subject to seizure? Would a customer, then, be more likely to buy a service from a Non-US service provider, as the privacy laws in the US are so porous? Sounds like a slippery slope to me.
Time for a new Political party in the US (or two!) One is off the rails Other cant pony up a leader.
Don't you just love the smell of electioneering in the morning?
Just another toothless regulation to be watered down in the run up to November.
“He’s not deformed, he’s just drunk!”
...make a new law to make breaking the original laws illegal.
Well certainly anything that moves this from precedent and complexities of corporations winging it to black letter law would be a net gain. The role of search warrants and how to handle international issues should be between the USA government and the EU. Tech companies should just be following the law. I think everyone agrees the stored communication act (1986) needs updating
Now a few points:
Europeans keep citing European laws Microsoft's council has not been able to show that there was any Irish law in conflict with the previous warrants: Second, while many media reports have claimed that the decision was contrary to foreign privacy laws protecting the requested emails, it was clear from the transcript that Microsoft never raised such a conflict of law. (“Microsoft . . . has not been able to point to any specific provision of Irish law that in any way forbids it from handing the data over.”) Some commentators claimed that the data must be subject to foreign privacy protections because Ireland is part of the European Union, and thus the data must be subject to the European Data Protection Directive. However, what they failed to appreciate is that the European Data Protection Directive, by itself, is not legally binding. It needs to be ratified as national law by each member state. As a result, there are variations across the member states as to what is allowed and what is prohibited. Accordingly, the impact of an actual conflict of law on future warrants remains undecided.
Moreover the issue was always that USA people had control of the data: because Microsoft could access and retrieve the requested documents from a terminal within the United States, even though the actual search and retrieval would occur abroad, the data was still under Microsoft’s control in the United States, and thus properly subject to the SCA warrant.
Instead of weird exceptions like this, which are likely to cause only further problems, the US should reduce the intrusiveness of law enforcement in general. Stop the war on drugs, simplify the tax code, consistently require court warrants for searches, etc., and we could reduce online searches by 90%
Instead of trying to block certain aspects of searches we should just bite the bullet and get a Privacy amendment to the Constitution. Certainly where laws may have been broken there's an interest in seeing justice done but US laws should only apply to the US and citizens who reside there. For example, the IRS would no longer be allowed to shake down the Swiss or US citizens lawfully living in other nations. This would also mean that information we trust to third parties would be considered private and would overturn that horrible judicial precedent that has allowed this horseshit to go on long enough. While we're at it also lets exclude every fucking company from mining our daily activities for fun and profit.
Harrison's Postulate - "For every action there is an equal and opposite criticism"
The submitter added that on their own. The bill applies to all US persons, i.e., all citizens, permanent residents, and corporate entities.
From the actual text of the bill:
The term ‘United States person’ means a citizen or permanent resident alien of the United States, or an entity or organization organized under the laws of the United States or a State or political subdivision thereof.’
The word "citizen" doesn't even occur in the article.
Cameras stopped rolling? Yes?
Laws are for citizens, we politicians are exempt.
What happens If foreign countries outlaw, or even makes it a criminal offense to hand over data held in servers physically located in the country without a valid order from their own courts?
You're reading it wrong.
Currently the US Government can get a warrant for anyone's data, and US-Based companies must comply or the Courts will seriously fuck them over. The NSA actually has warrants issued by the FISA Court covering all non-US Citizens (yes, I know lots of people thing the warrant is BS, but the simple fact is the Courts disagree with you, and in the US being right when the Courts are wrong doesn't get you jack-squat. Just ask Dredd Scott). Which means that if you're a German, and you're concerned about the NSA, you probably ain't gonna use Yahoo for jack-shit.
This rule would make it impossible for the Courts to order Yahoo to turn over data on that German, as long as the data is stored on Yahoo servers outside the US.
I'm kind of curious as to how this is supposed to work legally. The Fourth Amendment is controlling in the granting of warrants, and it only includes roles for the Executive (asking for a warrant) and the Judicial (granting the warrant). If Obama has probable cause that Yahoo used timd977 is shipping Heroin in from Russia, then the Courts are gonna grant the warrant. Then when Yahoo says "Fuck you, we've got this statute," it's totally irrelevant. The Warrant is valid under the Fourth Amendment,which means Yahoo is by definition in contempt of Court if it refuses to hand the government the data.
I'm not a lawyer, or a specialist in criminal law, so it's possible the Courts have to look at statutes governing probable cause before granting warrants, or can't hold people in contempt unless a statute specifically gives them permission, or something like that. But it just seems to me that if the US Constitution's Separation of Powers mean anything it's that a) Congress can't just pass a law saying the Executive Branch has fewer powers then it is granted by the Constitution, and b) no statute can stop the Courts from penalizing people who disobey them.
So, become an employee of a Cayman Islands corporation and create all your data as work product of that company. Store it offshore and any warrant will have to be served against the property of that company, not you.
Have gnu, will travel.
This bill is supposed to persuade foreigners that the United States does not gather data on them, because they aren't included in the warrants.
Well, the NSA and the CIA and other like agencies don't need warrants to gather information abroad, so this law is just a fuzzy stuffed toy to provide false comfort.
What are the Germans going to think? "Oh, what a relief, I am secure knowing that the United States of America spies only on its own citizens."
This bill clarifies that an American corporation colluding in surveillance of foreigners does so with the latitude and secrecy of an intelligence agent.
Meanwhile, it affirms the US Government's power to ensure that the people are not secure from unreasonable searches.
Each statue defines 'US Person' differently. Some are far reaching and define it to be anyone resident or doing business in the USA. Others have a more restricted definition. For the purpose of ITAR, for example, you can become a non US Person simply by being an employee of a foreign company. Even if you are a US citizen and reside within the USA.
Simple explaination: You need to ask a lawyer.
Have gnu, will travel.
The fourth amendment, and the rest of the bill of rights, lists things the government shall not do.
Separately, the enumerated powers clause lists what they are allowed to do, and says they may not do anything else oter than what is listed - all other powers are reserved to the states and the people, the Constitution says.
Nothing in the Bill of Rights or anywhere else in the Constitution gives the executive the right to perform searches, except that Congress has legislative power (limited to the enumerated powers) . It's Congress that grants the executive search power, by passing a law saying they can search _____ when _____. The fourth LIMITS that, saying Congress may not allow unreasonable searches. The Constitution does NOT say that all reasonable searches are allowed.
Encrypt everything you can, always, everywhere. Even bad encryption will slow the spies down and increase their costs.
Excuse me, but please get off my Pennisetum Clandestinum, eh!
So any firm could hire one foreigner and put all materials in their files so that the entire workings of every company could be hidden. Be afraid! Be very afraid! The notion that any congressman could vote for such a trash bill makes me sick. They might as well stand before congress and call for a vote to be deliberately corrupt. We really need to lynch people these days and most of them are in important positions. This nonsense is treason and could bring down America.
to just say "F*k You!" to the U.S. Government?
It varies.
If the law states you must be a citizen for it to apply to you, then if they can't trivially make a determination whether 'X' is owned/controlled/related to a citizen, it is assumed the law applies because you might be a citizen.
If the law states you must not be a citizen for it to apply to you, then if they can't trivially make a determination whether 'X' is owned/controlled/related to a citizen, it is assumed the law applies because you might not be a citizen.
Sleep your way to a whiter smile...date a dentist!
The Constitution grants CONGRESS the power to coin regulate money, not the executive. The exact wording is "Congress shall have the power..." The executive has only those powers that Congress grants it, except for a very, very few granted directly by the Constitution.
> that the government had the power to make unreasonable ones before.
The Constitution is the founding document that CREATED the federal government. It didn't exist "before". Before the Constitution, including the Bill of Rights, we had only a loose coalition of states, with the confederation itself having virtually no power - not even the power to tax.
The reciprocity comment is an interesting one. Since most countries respect sovereignty of other nations they have no need to pass a law to tell people that the law is only applicable in their own country. That just is.
So why make the comment? Is it a case of being able to say later: "We had good intentions but no other nation was willing to reciprocate so we dropped the law."?
As a side note, I wonder about the legalities of passing a law that affects an ongoing case. How does this work in the USA? Is the Government vs Microsoft case that is currently ongoing affected by the law if it is passed? If so why not do away with the judicial branch altogether? Why not just go straight to the politicians to have your problems solved, I mean you already vote for the judges.
The Constitution is only a few pages . You ca read it, rather than making wild guesses about what it says. So far, all your guesses are wrong. Article 2 section 2 enumerates the powers of the president. They are:
Make treaties
Appoint certain officers, subject to Senate approval
Serve as commander in chief of the armed forces
Sign or veto bills passe by Congress
There may be one more I'm not thinking of off the top of my head, but "run everything " is not in the list. 99% of what the president does is at the direction of Congress. The Constitution vests most authority in Congress. If you don't believe me, like I said you can easily read it for yourself. It's short enough that I had it memorized at one point in time.
Your logic sucks. It's so bad I'm going to declare you a troll, and a particularly shitty one because my aspy ass does not pick up on them quickly.
How is it possible that you can appoint all the officers (look up the Tail Hook scandal if you don't believe me), have the unilateral right to remove all the highest ranking officers, and not run things? Indeed, how stupid would the Founders have had to be to create an Executive Branch whose Chief Executive couldn't make Executive decisions?
In response to Tail Hook, Congress passed laws preventing commanders from overturning jury conviction for sexual assault, requiring a civilian review when commanders decline to prosecute, requiring dishonorable discharge or dismissal for those convicted, eliminating the statute of limitations for courts-martial in rape and sexual assault cases and criminalizing retaliation against victims who report an assault. The President did nothing. So who, exactly, demonstrated the power to do something about it?
Congress has the express power to control the scope of what the courts have authority over. So if it creates black letter law taking an area (what resides on foreign servers involving non-citizens) outside their scope then that isn't a violation of separation of powers.
The 4th is a guarantee to the people that they cannot be searched without warrants. It doesn't say courts can do whatever they want with warrants.
American companies are going to have to set up subsidiaries in Europe, and make sure that there is no way the US parent can access the data. Otherwise their cloud services are going to fail there. European companies are already advertising keeping data away from the US as a feature, although I expect many of them would cave fairly quickly if challenged.
const int one = 65536; (Silvermoon, Texture.cs)
SJW, n: "Someone I don't like, and by the way I'm a fuckwit" - AC
What I don't understand is how this situation is new. If a US Company has physical records, paper, CDs, whatever, and they are storing them across the border in Canada can they still be the subject of US warrant? If not, how is this different, if so, what's new?
In a sane system, data abroad would just be outside their jurisdiction. The court couldn't simply get a warrant for it, just like it couldn't order someone fetch a physical item from another country.
The President did nothing. That was the scandal.
The Congress had to step in and use their power of the purse, and their control of the nominations process, to force the president to act. Their power to force the President to take a fairly basic administrative action (investigate wrongdoing in his department) was so limited they had to hack their way around the problem by refusing to let any officer in the Navy be promoted (all military officers are confirmed by the Senate, and have to be confirmed again if they get promoted) until something changed.
Congress has power, but it's not the power to run things on a day-to-day basis. They can tell the DEA there is a law against heroin, and you have $X to enforce that law; but the people who actually enforce the law do so on the basis of Presidential orders.
I don't understand. The courts pay attention to the statutes, not just the Constitution. The Fourth Amendment doesn't say "the government can always get warrants under certain restrictions" but "the government can't get warrants that violate these restrictions". Congress is free to limit warrants further, but Congress can't make a warrant not based on probable cause legal.
Congress cannot indeed pass a law that says the Executive Branch doesn't have the powers granted by Article 2 of the US Constitution (as amended), but there's really not a whole lot there about specific executive powers. In particular, there's no mention of search warrants. In the meantime, the President and Executive Branch are supposed to uphold the law of the land, which does include Congressional acts (if signed by the President, vetoed but veto overridden, or ignored for ten days while Congress is in session).
Courts can always screw up, but in general they don't act arbitrarily, and there are avenues to appeal to higher courts. If Yahoo says "but this law says this search warrant is invalid", that's a good defense against having to execute it.
"When you have eliminated the unacceptable, whatever is left, however improbable, must be the truthiness" - Holmes
And where does Congress get the power to limit warrants further? None of the Fourth Amendment cases I've seen talk about statutes. And you'd think one of them would mention a statute governing warrants if statutes governed warrants.
Another guy said something that seemed to reference Congress right to "constitute Tribunals inferior to the supreme Court;" which allows them to limit the scope of lower Courts. That's a bit of a stretch, but it's a lot more plausible then "Of course a statute is valid. Congress is blessed by God himself with unlimited power to do anything it wants," which seems to be the entirety of your argument.
I'm not asking you for the world here. I just want to know which clause of the Constitution you're talking about. If it exists it must be implicit in some other power Congress is granted in Article I because the word "warrant" never appears.
You cna expect reciprocity from nations that don't have nuclear weapons. That would be Russia (hmmm, being very reciprocal at the moment, with their traditional single-finger wave), China (same wave, I see ; odd that), UK, France (waving a greasy dildo and a stale crusty baguette respectively, both begging you to come back again soon, but for different reasons). Oh, and don't forget Israel, India, Pakstan, DPRK, and imminently Iran.
America is really on a steep learning curve with this international relations thing. Enjoy!
Birds are not dinosaur descendants;birds are dinosaurs, for all useful meanings of "birds", "are" and "dinosaurs"
Of course the Fourth Amendment cases don't talk about statutes. The Constitution trumps any legislation. That doesn't mean there can't be statutes that make certain types of searches explicitly illegal.
Article I, Section 8, last paragraph: "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." This means that Congress can pass laws concerning law enforcement, and can have laws binding on the President and the Courts.
"When you have eliminated the unacceptable, whatever is left, however improbable, must be the truthiness" - Holmes
Any case involving the powers of search and seizure is a Fourth Amendment case, so you just illustrated your problem: Congress can make a law governing the granting of warrants, but it will be totally ignored because "Fourth Amendment cases don't talk about statutes." The DoJ will ask for the warrant, and the Judge won;t even read the Congressional rulebook.
The power you mention is a much better fit then the scope of the Courts one, but it's also a bit of a stretch. A warrant is a very low-level operational decision of the Executive and Judicial branches, not a high-level policy decision. That clause is pretty clearly intended to give them high-level abilities to set policies not explicitly granted by their other powers.
And the Constitution is not about high-level policy? The Fourth Amendment limits the ability to issue warrants, and therefore tacitly assumes that there are such things. The paragraph I mentioned says nothing about Congress being limited to anything high level, just that Congress can pass laws to enforce and support its Constitutional powers. If Congress passes a law allowing Federal search warrants under certain circumstances relating to cases of interstate commerce, that's perfectly Constitutional. Nobody else can pass such a law.
"When you have eliminated the unacceptable, whatever is left, however improbable, must be the truthiness" - Holmes
Your last sentence is (again) the problem with your argument. Whether anyone else can pass a law is totally irrelevant because warrants aren't laws. They aren't governed by laws. They are governed by the Fourth Amendment and Case Law. I've never said they can't pass this law. Congress can pass any law it wants. I'm only arguing that it is roughly as relevant as say; a law requiring Eisenhower to trade trade Omaha Beach for with the Canadians for Juno Beach. This is not a law that works because you have high-level authority to set laws, it's a law that works because you can order individual DEA Agents around. And Congress just does not have that power.
What's going to happen is quite simple: The president has the power to execute laws using law enforcement officials he appoints. He will tell his officials to ignore the law, so they will. They will continue to ask for European data. The Courts are not subject to Congressional whims at all, so they will continue to grant warrants allowed by the Fourth Amendment.
Congress can pass all the laws restricting Presidential power it wants. It can pass all the laws restricting the Courts it wants. It just can't do it and expect either the President or the Courts to give a flying fuck.
The President is responsible for executing the laws, not ignoring them. The Courts are responsible for judging cases based on the laws, not ignoring them. The President really doesn't have that much inherent power under the Constitution, since the Constitution generally does not require certain laws to be made, and the Constitution has limited other responsibilities for the office.
The big point is that the Fourth Amendment does not itself allow search warrants. Any such warrants, to be legal, would have to be authorized by law and acquired in a lawful manner. Neither the Courts nor the President can create a legal justification for a warrant, in the absence of Congressional acts. The Fourth Amendment disallows certain possible warrants.
As an analogy, the Eighth Amendment forbids cruel and unusual punishments. That does not give the Executive and Judicial branches the power to issue normal punishments arbitrarily. Those punishments are actually allowed only because of laws passed by Congress.
"When you have eliminated the unacceptable, whatever is left, however improbable, must be the truthiness" - Holmes
That first paragraph would be a very persuasive argument if Congress had the right to pass the law. Since the whole point of this debate is that it's not clear Congress can unilaterally curtail either a) the powers the President has to enforce laws or b) the Court's duty to judge warrants based solely on the Fourth Amendment; your first paragraph is irrelevant.
Moreover it's pretty silly: yes in 1789 the Presidential powers sucked. Now the President can talk to the people he appoints to all the little offices everywhere in the country. He can also fire them. There are thousands of them. They work for a government that has it's hand in every pie. This means that if the president decides not to do his duty and enforce a given law (ie: DOMA, pot laws in Colorado, etc.) he can get away with that. The Courts consider the dispute a dust-up between the other two branches and won't intervene. Congress could make a big deal out of it,. but to do that they'd actually have to make a big deal out of it (by impeachment or government shut-down) and they're too chicken to try.
Your next couple paragraphs would be more persuasive, if you had a single example of Congress passing a single law restricting the powers of search and seizure. You don't. I'm arguing Search and Seizure are inherent to the phrase "executive power." Under common law sentencing has never been an element of Executive power. Choosing when to ask for a warrant is an element of Executive Power, related to the Prosecutorial Discretion that lets Obama not prosecute potheads in Colorado.
I'm not saying you're totally unpersuasive. I've actually gone from pretty skeptical to relatively sure the Courts go along with you. But anyone who acts like a system with "Separation of Powers" and "Checks and balances" specifically designed into it has to understand that those systems only work when the delineations between the Branches are not clear, because otherwise they'll never have any reason to check each-other. This is one of those cases where Congress would be either a) using a power it has apparently never used before or b) arrogating itself a power it does not have; which means c) it's a judgement call whether it has said power.