Yesterday, the Senate Judiciary Committee Subcommittee on Crime and Terrorism held a hearing on "Law Enforcement Access to Data Stored Across Borders: Facilitating Cooperation and Protecting Rights." Witnesses included: Brad Wiegmann, Deputy Assistant Attorney General, National Security Division, U.S. Department of Justice; Paddy McGuinness, U.K. Deputy National Security Advisor; Brad Smith, President & Chief Legal Officer, Microsoft Corporation; Jennifer Daskal, Associate Professor, American University Washington College of Law; and Christopher Kelly, Director, Digital Evidence Laboratory, Commonwealth of Massachusetts Office of the Attorney General. The personal appearance before the U.S. Congress of Mr. McGuinness, the deputy national security advisor in the U.K., just two days after the terrorist attack at Manchester, speaks to the close and continuing cooperation and special relationship between the U.S. and U.K. on law enforcement and national security matters.
Statements for the record as well as a preview of the hearing are available in this post written by Professor Jennifer Daskal on Just Security. Of primary focus in this hearing were the dual but interrelated legal compliance issues of the challenges presented to U.S. technology companies: (i) on the receiving end of requests for data from foreign law enforcement services, and (ii) on the receiving end of requests for data from U.S. law enforcement services for data stored on servers located in a foreign country. As Professor Daskal notes in her post, all of the panelists, despite arriving at the issue from different perspectives, recognize in their statements that the status quo for the U.S. legal framework for law enforcement access to data across borders cannot hold. Where some of these panelists as well as other observers tend to diverge in their analysis, however, is on the best way forward – whether that is allowing the issues to work their way through the courts, crafting agreements between countries, passing legislation and/or implementing other legal, policy or bureaucratic reforms. Notably, Senator Coons urged the Department of Justice not to appeal the latest denial for re-hearing en banc of the 2nd Circuit Court of Appeals decision in the Microsoft-Ireland case, communicating the view to DOJ’s witness that he, at least, would not view a continued litigation strategy consistent with a serious effort at working collaboratively with Congress to achieve a legislative compromise.
Video of the hearing is available here.