Hatch Urges Senators to Support International Communications Privacy Act
Washington, D.C.—Senator Orrin Hatch, R-Utah, the senior member and former Chairman of the Senate Finance Committee and the Chairman of the Senate Republican High-Tech Task Force, spoke on the Senate floor today about the International Communications Privacy Act—a bill he introduced with Senator Chris Coons (D-DE). This bipartisan proposal updates law enforcement practices for the modern age and has already received considerable praise from tech leaders.
The International Communications Privacy Act provides critical guidance to law enforcement while respecting the laws and interests of our allies. It brings a set of simple, straightforward rules to a chaotic area of law and creates an example for other countries to follow. It is a balanced approach and a smart approach, and it deserves this body’s full-throated support.
The full speech, as prepared for delivery, is below:
We must be willing to work in good faith with members of the opposite party. All too often, we miss opportunities to effect meaningful change by hiding behind partisan differences. We must take the opposite course by renewing our efforts to reach across the aisle to overcome division and forge consensus. There is no better template for effective, bipartisan legislating. This is the model I’ve followed for decades for the betterment of Utah and the nation. And it’s the model I’ve followed most recently in working with my dear friend, Senator Coons, to introduce the International Communications Privacy Act, or ICPA.
ICPA is more than just a commonsense proposal that updates law enforcement for the modern age; it’s a symbol of what our two parties can accomplish when we lay aside petty differences and come together for the good of the nation.
In crafting this proposal, Senator Coons and I took great pains to strengthen international data privacy protections while also enhancing law enforcement’s ability to access data across borders.
This issue has long been a priority of mine. I’ve spoken about it at length both here on the Senate floor and in other venues and have introduced legislation on the subject over multiple Congresses. Most recently, I came to the Senate floor to explain how the rise of cloud and remote network computing has transformed the way we store data and to describe the implications of that transformation for our data privacy laws.
Until relatively recently, most electronic data was housed in personal computers or on servers located in offices or homes. This meant that in order to access data, a person could simply go to the relevant location and retrieve it.
That is no longer the case. Nowadays, much of our data is stored, not on home or office computers, but in the cloud, a network of remote servers spread throughout the world that allows us to access data from literally anywhere. Data pertaining to a single individual, or even to a single document, may be stored at multiple sites spread across countries or even continents. This has profound implications for data privacy.
To begin with, our privacy laws require government officials to obtain a warrant before they can access many types of electronic communications. Warrants, however, traditionally have stopped at the warrant’s edge. This means that if a law enforcement agent is investigating a crime here in the United States but a key piece of information is stored on a remote server outside the United States, the agent may have significant difficulty obtaining the information. Without a warrant, or the ability to get a warrant, the agent may have to use diplomatic channels to obtain the information—a process that can be extremely slow and cumbersome.
Our privacy laws also prohibit disclosure to foreign entities. This means that when a foreign government is investigating a crime within its borders and a key piece of information is stored in the United States, the foreign government must likewise work through diplomatic channels to obtain the information.
The growing prevalence of cloud and remote network computing has brought law enforcement into increasing conflict with these sorts of restrictions. Crime knows no borders. A child pornographer in Bangalore may post photos of an American victim on a British server that can be accessed worldwide. A U.S. official investigating the crime may need information stored on the British server in order to track down the culprit.
If the server was in the United States, the official could simply issue a warrant. But that tool isn’t available in this scenario because the server is overseas. Moreover, the United Kingdom may have a statute, similar to our own law, that prohibits British service providers from disclosing communications to foreign entities.
Diplomatic channels exist for sharing such data, but these channels are exceptionally slow and can take months or even years to process requests. In the meantime, crimes go unpunished and perpetrators disappear.
Mr. President, this state of affairs is simply not tenable. We cannot allow outdated laws to hamstring law enforcement efforts in this way. At the same time, we must adequately protect Americans’ privacy against unwarranted government intrusions.
Some have suggested that the answer is to simply extend the reach of U.S. warrants worldwide. This, however, is not a viable solution, as foreign disclosure laws can and do conflict with U.S. laws. Extending the reach of U.S. warrants without reasonable limits would thus place service providers in the impossible position of having to choose which country’s laws to violate—ours or the foreign jurisdiction’s.
What we need, Mr. President, is a sensible regime with clear rules that determine access based on factors that matter to the person whose data is being sought. At the same time, we need to take proper account of the laws and interests of other countries, especially our allies. We ought to avoid, where possible, trampling on other nations’ sovereignty or ignoring their own citizens’ legitimate claims to privacy.
Accordingly, ICPA, sets clear rules for when and how U.S. law enforcement can access electronic data based on the location and nationality of the person whose data is being sought. Here’s what the bill says.
If a person is a U.S. national, or is located in the United States, law enforcement may compel disclosure, regardless of where the data is stored, provided the data is accessible from a U.S. computer and law enforcement uses proper criminal process.
If a person is not a U.S. national, however, and is not located in the United States, then different rules apply. These rules are founded on three principles: respect, comity, and reciprocity.
First, respect. If U.S. law enforcement wishes to access data belonging to a non–U.S. national located outside the U.S., then U.S. law enforcement must first notify the person’s country of citizenship and provide that country an opportunity to object. This shows respect to the other country and gives it an opportunity to assert the privacy rights of its citizen.
Second, comity. If, after receiving notice, the other country lodges an objection, a U.S. court undertakes a comity analysis to determine whose interests should rightfully prevail—the U.S. interests in obtaining the data or the foreign interests in safeguarding the privacy of its citizen. As part of this analysis, the court considers such factors as the location of the crime, the seriousness of the crime, the importance of the data to the investigation, and the possibility of accessing the data through other means.
Third, reciprocity. In order to receive notice and an opportunity to object, the other country must provide reciprocal rights to the United States. This ensures that the U.S. provides its own citizens an equal or greater level of protection against foreign requests for data. It also offers incentives to foreign governments to properly safeguard the data of U.S. citizens within their borders.
Now, Mr. President, up to this point I’ve been focusing on requests by U.S. law enforcement for data stored outside the United States. But there’s another side to the problem, and that’s what happens when foreign law enforcement requests data stored inside the United States.
As I’ve mentioned, our privacy laws prohibit disclosure to foreign entities. Suppose you have a British subject who committed a crime in Britain but data relevant to the investigation is stored in the United States. Even if British law provides for extraterritorial process, a U.K. official investigating the crime will be unable to obtain the data because U.S. law prevents disclosure to foreign officials. As with U.S. requests for data in other countries, diplomatic channels exist for sharing such data, but these channels are slow and extremely cumbersome.
Accordingly, for the past several months I’ve been working with Senator Graham and others to find a solution to this second part of the problem. Senator Graham, together with Senator Whitehouse, convened a hearing in May of this year that I believe highlighted the need for action. I’ve also met with ambassadors and other high-ranking foreign officials who have impressed upon me the challenges they’re facing under existing U.S. law.
And so, Mr. President, I think we need to address this second side of the problem—foreign requests for data in the U.S.—as well. And we need to address it in conjunction with the first side—U.S. requests for data in other countries.
It will not do to give foreign authorities readier access to data stored in the U.S. without likewise clarifying U.S. law enforcement’s ability to obtain data stored abroad. Similarly, it is inconceivable to me that we would open our doors to foreign law enforcement requests while telling U.S. law enforcement that data in other countries is off-limits. Surely we should not preference foreign criminal investigations over domestic ones.
Mr. President, I believe these two issues—ICPA and the bilateral US-UK agreement—are inextricably linked. I’ve worked in good faith with Senator Graham, and with Senator Whitehouse, to find a path forward on these issues. It’s my firm belief that we need to move these two issues together. Everyone has a vested interest in privacy, and everyone has a vested interest in bringing criminals to justice. We’ve got to work together on this.
In closing, Mr. President, I would emphasize one additional point.
The question of whether, when, and under what circumstances the United States should authorize law enforcement access to data stored abroad is a question for Congress. There have been suggestions in some quarters that this is a question for the courts to decide. I emphatically reject that position. This is a policy question for Congress. We should not defer to the courts’ interpretation of a statute that was passed thirty years ago with no thought or comprehension of the situation we face today. Subject to constitutional constraints, it is Congress’s job to set the bounds of government’s investigatory powers. We decide what government officials can and cannot do. We should not pass the buck to the judiciary merely because this is a complicated issue.
The International Communications Privacy Act provides critical guidance to law enforcement while respecting the laws and interests of our allies. It brings a set of simple, straightforward rules to a chaotic area of law and creates an example for other countries to follow. It is a balanced approach and a smart approach, and it deserves this body’s full-throated support.
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Hatch: The Senate is capable of much more.
Washington, D.C.—Senator Orrin Hatch, R-Utah, the President Pro Tempore of the United States Senate, and one of the most effective legislators in modern history, spoke on the Senate floor today about the broken state of the United States Senate, and discussed critical changes that must be made moving forward
The Senate is capable of so much more than it is today. I know because I’ve seen the Senate at its best. I’ve seen the Senate when regular order was the norm, when legislation was debated in committee, and when members worked constructively with one another for the good of the country. I’ve seen the Senate when it truly lived up to its reputation as the world’s greatest deliberative body.
I believe we can again see this body at its best. But restoring the Senate to its proper function requires real change on all sides. It begins by recognizing that all of us here—Democrats and Republicans alike—are to some extent culpable for the current dysfunction. If we want to break free of the current gridlock, we have to be honest with ourselves. And we have to recognize that laying all the blame on the other side is as counterproductive as it is disingenuous.
The full speech, as prepared for delivery, is below:
Mr. President, I represent a generation of lawmakers brought up on the principles of bipartisanship and compromise. And I believe that these very virtues are the keys to my success as a legislator. By putting these principles in practice as Chairman of the Finance Committee, I was able to pass more than 40 bills into law during the last Congress. And by working with my friends across the aisle over many decades of public service, I’ve been able to pass more legislation than anyone alive today.
Mr. President, I draw from these personal experiences to illustrate a simple point: In an era of endless gridlock and increasing polarization, there is no alternative to civility and healthy debate. We would do well to remember this in light of the frustrations we’ve all felt over the past several months.
The Senate is capable of so much more than it is today. I know because I’ve seen the Senate at its best. I’ve seen the Senate when regular order was the norm, when legislation was debated in committee, and when members worked constructively with one another for the good of the country. I’ve seen the Senate when it truly lived up to its reputation as the world’s greatest deliberative body.
Mr. President, I believe we can again see this body at its best. But restoring the Senate to its proper function requires real change on all sides. It begins by recognizing that all of us here—Democrats and Republicans alike—are to some extent culpable for the current dysfunction. If we want to break free of the current gridlock—and if we want to show the American people that we are serious about legislating—then we have to be honest with ourselves. And we have to recognize that laying all the blame on the other side is as counterproductive as it is disingenuous.
Most importantly, we must be willing to work in good faith with members of the opposite party. All too often, we miss opportunities to effect meaningful change by hiding behind partisan differences. We must take the opposite course by renewing our efforts to reach across the aisle to overcome division and forge consensus. There is no better template for effective, bipartisan legislating. This is the model I’ve followed for decades for the betterment of Utah and the nation.
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