A holiday surprise: Will Congress protect privacy?

The recent move by the Department of Justice (DOJ) to re-open a case against Microsoft illustrates the need for Congress to protect the privacy rights of all Americans by passing International Communications Privacy Act (ICPA). The rumor has it that this bill will be considered on the floor before Christmas, and that’s a good thing — enacting ICPA and safeguarding the Fourth Amendment should be a priority for this session.

The case against Microsoft involved an attempt by the DOJ to obtain information stored on foreign located “cloud servers” without a warrant from law enforcement in the country where the server is hosted.

{mosads}Microsoft appealed this action and won when the Second Circuit Court of Appeals in New York ruled against the DOJ. The court found that the Electronic Communications Privacy Act (ECPA) does not allow U.S. law enforcement to access electronic communications located on servers hosted outside the United States.

ICPA will balance the need of law enforcement to obtain such data with a court-approved warrant, all while protecting the key right of privacy of individuals and businesses storing data on overseas servers.

Imagine if law enforcement from another country asserted it could obtain electronic data from a server hosted here in the United States without a warrant? Would some Americans view this as an act of war, or create an outrage? Clearly America would not tolerate this — after all, we’ve started wars over less — and for our security’s sake, we should not stand by this overreach by our own government.

The chief sponsors of ICPA in the U.S. Senate, Sens. Chris Coons (D-Del.), Orrin Hatch (R-Utah), and Dean Heller (R-Nev.) have written a letter to the DOJ regarding their move to re-open the case against Microsoft.

In that letter, the senators wrote, “ICPA clarifies when and how law enforcement can obtain electronic communications of U.S. citizens, no matter where the person or the communications are located. The bill also provides mechanisms by which U.S. law enforcement can—in limited circumstances and consistent with international law—obtain electronic communications of foreign citizens. We write to seek your continued engagement on this important issue and urge the Department of Justice to work with us in fine-tuning ICPA.”

Congress has it within its means to pass this legislation and clarify this issue legally to protect privacy rights. ICPA will modernize the outdated ECPA by establishing a legal framework for accessing extraterritorial communications, all while ensuring that the Fourth Amendment is adequately protected.

“It is past time for Congress to modernize the outdated Electronic Communications Privacy Act. As we do so, lawmakers must not ignore the pressing issue of international data privacy and the need for Congress to establish a legal framework for accessing extraterritorial communications,” Sen. Hatch said in support of the ICPA legislation.”

Sens. Chris Coons, Dean Heller, and Orrin Hatch are great champions of the privacy rights of all Americans. Their fellow members of Congress should follow their example and utilize the opportunity of this so-called lame duck session to put ICPA on the agenda and urge the Senate and House to pass it before Christmas. This will be a great accomplishment that President Obama — once a self-described champion of privacy rights — can put on the end of his resume as well. In truth, it’s a win-win for both constitutional conservatives and progressive Democrats. The time to act is now.

Dean Chambers is an independent journalist and blogger whose articles have been featured on The Drudge Report and The Rush Limbaugh Program, as well as parodied by Stephen Colbert, Chris Matthews and Rachel Maddow.

The views expressed by authors are their own and not the views of The Hill.