ACSBlog

  • September 4, 2015
    Guest Post

    by John V. Petersen, J.D., Neuron ESB

    *This post is part of ACSblog’s symposium examining proposed reforms to the Electronic Communications Privacy Act (ECPA).

    The cloud – remote access to shared computer resources – saves American businesses millions of dollars a year. But regulatory uncertainty around data and privacy, and overreach by American law enforcement, threatens access to this critical resource.

    As a software developer and attorney, I’ve seen both the technical and legal growth of this resource. My information technology practice and business is about assisting customers all over the world to create hybrid environments, often in the cloud, where all their systems can work together. Without a secure and reliable cloud, the needs of many businesses would go unaddressed.

    The cloud has facilitated commerce on a scale never before seen. The exponential growth of the app economy – a $120 billion dollar industry after just seven years – demonstrates the profound impact of this technology. The cloud provides all companies an affordable infrastructure that allows us to compete in a global marketplace.

    The Problem

    Based on the Electronic Communications Privacy Act  (ECPA) – a statute five years older than the world wide web – the Department of Justice claims it has authority to access the data of U.S. companies’ customers stored anywhere in the world. We learned about this through Microsoft v. U.S. when the Redmond company refused to hand over emails in Ireland for a criminal investigation.

    Because the cloud marketplace is dominated by U.S. companies, DOJ’s claim of extraterritorial jurisdiction would yield a broad reach into communications and data stored globally. Our trading partners are keenly aware of this and they are rather displeased.

  • September 4, 2015

    by Nanya Springer

    On The Huffington Post BlogJudith E. Schaeffer of the Constitutional Accountability Center weighs in on the controversy in Rowan County, Kentucky, arguing that obtaining a marriage license should be hassle-free for everyone.

    In a press release, Demos announced that the U.S. Court of Appeals for the Ninth Circuit on Thursday reinstated a case challenging Nevada’s failure to provide voter registration services to its low-income citizens. The decision comes after the case was thrown out by the U.S. District Court for the District of Nevada.

    Sam Ross-Brown and Amanda Teuscher report in The American Prospect that the Department of Labor’s new rules allowing workers at higher income levels to qualify for overtime pay will not only result in an effective raise for millions of people, but will also give workers more control over their work hours and personal lives.

    The Center for Reproductive Rights announced in a press release yesterday that it has petitioned the U.S. Supreme Court for review of a decision by the U.S. Court of Appeals for the Fifth Circuit. In June, the Fifth Circuit upheld onerous restrictions on abortion clinic access in Texas which, if allowed to stand, would close more than 75 percent of clinics in the state.

  • September 4, 2015
    Guest Post

    by Anupam Chander, Director of the California International Law Center and Professor of Law at the University of California, Davis. He is the author of The Electronic Silk Road: How the Web Binds the World Together in Commerce, published by Yale University Press.

    *This post is part of ACSblog’s symposium examining proposed reforms to the Electronic Communications Privacy Act (ECPA).

    My parents grew up in a pen and paper world, where most of their writings and records were kept at home, in their offices, or with close confidantes. I grew up in a world of computers, but even my writings were mostly kept at home on hard drives and floppy disks (for today’s students, many of whom have never seen a floppy disk, a history of the floppy disk). My first writings were kept, astonishingly, on a cassette recorder, which stored what I typed on my TRS-80, a computer made by Radio Shack. That computer had a total memory of 16K, roughly 16,000 characters (not even words) of text.

    My children are growing up in the cloud, where their writings and their records are being stored in remote computers. Because those computers are managed by Dropbox, Google, Microsoft, and their peers, their writings are far more secure than I ever managed when I stored my files on a floppy or a hard drive, both of which failed with remarkable regularity and maximally devastating timing.

    But even if our kids never know the pain of losing a week’s work to faulty computing or an accidental deletion, they face a world where their writings are far more subject to government scrutiny than mine ever were. Not only are their writings subject to government searches, but also their whereabouts, through the tracking of smartphones. This is because while the Fourth Amendment clearly protects homes from searches and seizures without a warrant, it is not so clear that it protects writings and the records about us stored on a remote computer.

    Do our children deserve less protection from government snooping because they are relying on cloud services? Right now, the law says that if the government wants to read what’s on my home computer, it has to get a warrant to do so. But if the government wants to read what our kids are storing privately online, they may not. (For a more detailed account of when the government can access information online without a warrant, see this ProPublica summary, updated as of June 2014, but not including Riley v. California, described below.)

  • September 3, 2015
    Guest Post

    Greg Nojeim, Director of the Freedom, Security and Technology Project at the Center for Democracy & Technology.

    *This post is part of ACSblog’s symposium examining proposed reforms to the Electronic Communications Privacy Act (ECPA).

    As more and more data flows across state borders, the ability of law enforcement agencies to access information stored outside their jurisdiction or managed by a foreign company becomes increasingly complex. What country’s laws should apply to data requests? How quickly should access be granted and to whom? Should there be different standards for different countries? Mutual Legal Assistance  (MLA) processes have been one way to address these questions.

    MLA processes are those that law enforcement officials in one country trigger in another country to gain access to information over which the 2nd country has jurisdiction.  The information sought may range from witness testimony to communications content and metadata.  For example, if an investigating official in France needs communications content of a Gmail user in France to investigate a crime, she does not make the request directly to Google, but rather approaches a central authority in France which makes a request for mutual legal assistance of the US Department of Justice (DOJ), which can provide that assistance by applying for a warrant to serve on Google to compel disclosure of this information. 

    It is widely perceived that MLA processes are too slow for law enforcement investigations in the digital era and that they are not up to the task of dealing with the volume of cross-border demands for data that law enforcement agencies need to make.  A number of ideas are being put forth to address this problem and its many complexities.  This post is an attempt by the Center for Democracy & Technology (CDT) to spur public debate on one such idea and to solicit input that would inform a solid MLAT reform proposal. 

  • September 3, 2015

    by Jim Thompson

    In The New York Times, Linda Greenhouse, a member of the ACS Board of Directors, argues that conservatives are now taking a broader approach to standing, a stark departure from past canons of conservative thought.

    Rosie Flores at The Nation argues that a criminal record should not disqualify someone from public assistance, reasoning that “no one should go hungry for a crime they have already served time for.”

    In The New Republic, Brian Beutler warns against the waxing tide of libertarian scholars seeking to dismantle legal gains of the New Deal.

    Timothy Williams reports in The New York Times that the Association of State Correctional Administrators, the nation’s leading organization for prison and jail administrators, has called for sharply reducing or altogether eliminating the use of solitary confinement for extended periods of time.