Wed. Jan 20th, 2021

United States The constitution prohibits the government from engaging in any unlawful search and confiscating property belonging to a person or entity. A warrant signed by a judge is required before he can act.

On Tuesday, the United States Supreme Court was asked to determine whether this doctrine, enshrined in the Fourth Amendment, needed to be updated in a case commonly known as a “cloud” Contains information stored on.

First, a little background. In 2013, federal prosecutors sought to build a case against someone engaged in drug trafficking and obtained a warrant from the government that was believed to be in line with the Electronic Store Communications Act 1986, a measure that would call it an Internet service. Allows to retrieve records from. If the provider can demonstrate to a magistrate that a possible offense exists, then believe that the crime has been committed.

Unfortunately for all those people, it turned out to be something other than a common request. Some of the records the US government saw on servers located in Ireland were “on the cloud”, except for the company that operated both the email account and the server: complied with warrants in violation of Irish law or stating sand pounds. Fed to do.

The company in question, Microsoft, opted for the latter option and, to its detriment, ended up in court.

The United States Supreme Court on Tuesday heard oral arguments in the case, which, as it happens, are one of many that can be expected until Congress works to clarify the responsibilities of the US internationally. Is about information stored in cyberspace.

Congress must take action, and quickly – no matter what the court ultimately decides. To create a process through which any ambiguity and potential liability pre-empts legislation introduced by Utah Republicans Sen. Orrin Hatch and Chris Coons, a Democrat from Delaware, (along with a fellow bill in the US House of Representatives) Can be addressed.

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CLOUD – To Clarify Legitimate Use of Data – The Act, as Hatch stated on its introduction, “authorizes the United States to enter into bilateral data-sharing agreements with eligible countries, under which the United States The US agrees to lift its moratorium on disclosure of law. Enforcement in an eligible country if that country has agreed to lift any such bar on disclosure to US law enforcement. “

As Hatch describes it, the legislation and other proposals he is proposing will set “stringent requirements” with such agreements to maintain confidentiality and data security and allow foreign entities regarding U.S. citizens Will prevent information from being targeted or requested.

The Hatch / Cons law would also make it clear that any US Internet service provider such as a warrant providing service to Microsoft can access data stored with Microsoft provided that the data is within the possession, custody, or control of the provider while the same Time provides the capability of email and cloud computing providers. To challenge a warrant if they comply with it would violate the laws of a foreign country.

Together it enables US law enforcement agencies to investigate crimes to obtain information stored abroad without resorting to cumbersome diplomatic channels, while allowing courts to determine whether, in the interests of the international comity, The warrant must be modified or revoked.

The hatch / const approach to the problem has attracted the support of the influential Federal Society, an organization of conservative legal minds with considerable influence over the Trump White House. It described how the conflict is being asked by the Supreme Court to decide on its blog as follows: “Each country has its own laws on privacy and electronic storage, so what is legally necessary in the nation A is clearly in the nation May be prohibited from. It leads companies., Not Congress, to choose between disregarding one court order from one nation and violating the privacy laws of another, while all customers are left with ad hoc decisions. Was thrown into. “

As much as we depend on the courts to determine the outcome of such disputes, the Federalist Society and others who argue in favor of Congress – even before the Supreme Court has a chance to rule – are correct. Certainty is important, especially in areas where technology is far ahead of established law. In this case the High Court has been asked to enact a new law instead of explaining the meaning of an existing law, and that power is one that should be left to Congress. The Hatch / Const proposal appears to be a reasonable, targeted response to the problem raised by the Microsoft case, which would allow the use of cloud computing to seamlessly expand from legal concerns.

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