Groups blast DOJ proposal for foreign access to data stored in US

The American Civil Liberties Union (ACLU) and a slew of other advocacy groups are warning U.S. lawmakers not to get behind a proposal from the Justice Department that would allow some foreign governments to obtain electronic data directly from U.S. communications providers.

The proposal, which has been floated by the Justice Department since last year, is aimed at allowing foreign law enforcement swifter access to data on non-U.S. persons for relevant investigations on the basis that they meet certain requirements. 

Currently, foreign governments seeking data stored by companies inside the U.S. follow processes laid out in what are called mutual legal assistance treaties, or MLATs. Under the current process, the Justice Department vets individual requests and, in the event it finds the standards are met, seeks an order from a U.S. court to provide access to the communications. 

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U.S. officials and advocacy organizations agree that the current process is slow and cumbersome. But the 21 advocacy groups who wrote to congressional lawmakers on Wednesday argue that the Justice Department’s proposal would infringe on privacy rights.

“[The proposal] would even allow companies to conduct wiretaps (i.e. collect data in real time) for foreign governments, something that the current MLAT process does not allow,” the advocacy groups wrote. 

“In doing so, the proposed bill eliminates many key safeguards provided under current law that protect the rights of individuals inside and outside the United States,” they added.

In June 2016, the Justice Department proposed new rules for addressing cross-border data requests that would eliminate legal barriers to direct access to data stored by U.S. communications companies for certain foreign governments that have entered into agreements with the United States. 

The draft legislation would allow communications providers to intercept, access and disclose communications of non-U.S. persons to a foreign government in the case it is pursuant to an executive agreement that the attorney general certifies has met certain statutory conditions. 

Foreign governments, for instance, would need to ensure that the order does not target U.S. persons. The attorney general would also have to certify that the foreign government provides robust privacy and civil liberties protections. U.S. law enforcement would be able to reap the benefits of these agreements with other countries. 

Justice offered a nearly identical proposal earlier this year. 

“Reforming the MLAT process must remain a priority, but at the same time it is critical to find even more streamlined solutions for data held and transmitted via service providers,” Samuel Ramer, acting assistant attorney general, wrote to relevant members of Congress in May encouraging them to consider the proposal. “The current situation is unsustainable.”

Officials have positioned it as one that would pave the way for a bilateral agreement between the U.S. and U.K. currently under discussion by officials. 

“Crimes go on with the criminals unpunished as a result,” Paddy McGuinness, U.K. deputy national security adviser, told lawmakers on the House Judiciary Committee in June. “It constrains law enforcement and it makes us all less safe.” 

Sens. Lindsey Graham (R-S.C.) and Sheldon Whitehouse (D-R.I.) offered an amendment to the fiscal year National Defense Authorization Act based on the DOJ proposal, but it was never brought for a vote before the full Senate passed the defense bill earlier this week. 

Several data privacy, human rights and other advocacy groups have signed on to oppose the proposal, including Access Now, the Center for Democracy and Technology, and Human Rights Watch. 

“We urge you to oppose this legislation in its current form if it is introduced as either a stand-alone bill or as part of another legislative vehicle. We would appreciate the opportunity to discuss how best to improve current cross-border process in a rights-protective manner,” the groups wrote on Wednesday.