The Department of Justice has proposed draft legislation that would grant foreign governments easy access to electronic communications data, like emails, held in the United States. That poses threats to privacy, civil liberties, and human rights, as was outlined in a letter to Congress from human rights and civil liberties groups, including Defending Rights & Dissent.
Under current law, when a foreign government seeks the content of electronic communications like emails that are held by service providers in the U.S., they generally follow a “mutual legal assistance treaty” (MLAT) process. Under the MLAT process, foreign governments must send requests to the U.S. government, and if constitutional, legal, and human rights standards are met, a U.S. court will issue an order directing the U.S. company to provide the data to the foreign country. This current system for cross-border data requests is time consuming, but it is also rights-protective. The proposed legislation would empower certain foreign governments to bypass this process and seek information directly from U.S. companies, without providing adequate safeguards to ensure that human rights are still protected.
The concerns expressed in the letter include:
- The proposal would, for the first time, allow certain foreign governments to engage in wiretapping in the United States by requiring U.S. companies to turn over data in real-time;
- The proposal would allow foreign governments to obtain U.S.-held electronic data under a weak standard and without prior judicial review of the requests;
- The proposal does not provide meaningful protection for the civil liberties of people in the United States or for the human rights of people outside the United States; and
- The proposal does not prevent foreign countries from demanding that U.S. companies provide backdoors to circumvent encryption or store their data locally.
The proposal was introduced as an amendment to the annual defense authorization act bill last week, and could be introduced as a standalone bill later this year.