internet protocols

  • September 1, 2015
    Guest Post

    by Andrew K. Woods, Assistant Professor of Law, University of Kentucky College of Law

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

    There is growing consensus that ECPA reform is necessary.  ECPA was passed in 1986, a time when the Internet was more a research curiosity than what it is today: the global backbone for modern communications and commerce. And indeed, the time for ECPA reform has never been more urgent. The U.K. is urging a new treaty with the U.S. regarding data access, which could have an effect on some of ECPA’s provisions, and just as importantly the Microsoft Ireland case is working its way through the courts, which may lead Congress to respond. So it is welcome news that Congress is currently entertaining at least three bills that would reform ECPA – the LEADS Act, the ECPA Amendments Act of 2015, and the Email Privacy Act. There’s just one problem:  none of these reforms would fix the most significant problem with ECPA.

    By nearly every metric, the Internet has gone global, and it is dominated by American companies. U.S. Internet users now constitute only ten percent of the world’s Internet users, and the majority of Google and Facebook users are outside the U.S.. Yet, according to Alexa.com, the top websites and web service companies in many countries – Brazil, the U.K., India, France and many more – are mostly American. Moreover, as Orin Kerr has written, the drafters of ECPA simply did not contemplate an Internet that would cross national borders. Because the Internet is global, and because so many of the world’s leading websites are based in the U.S., ECPA has a number of nasty extraterritorial effects. 

    Imagine a police officer in the U.K. investigating a kidnapping in London in 2015. The prime suspect has a Gmail and Facebook account, so the police go to a magistrate and get a warrant to search the suspect’s apartment and to access his online accounts. The British investigators then take their U.K. warrant to Google and Facebook and ask to see the suspect’s private communications.  The response: “Sorry, ECPA prohibits us from handing that data over without a warrant from a U.S. judge.” This means that the British investigator will need to request mutual legal assistance from the U.S., in accordance with the U.S.-U.K. Mutual Legal Assistance Treaty (MLAT), which dates from 1996.  As I noted in a report for the Global Network Initiative earlier this year, the MLAT process is painfully slow, with requests regularly taking longer than a year. (The LEADS Act, to its credit, proposes a number of much-needed reforms to the existing MLAT process; however, the act does not change the fact that foreign law enforcement must still engage the U.S. government’s help to get cloud-based evidence held in the U.S.)

  • December 13, 2012
    Guest Post

    by David G. Post, Professor of Law, Temple University, Beasley School of Law

    As you may have heard, the UN wants to take over the Internet. Two questions:  1. Really?  And 2. Should we be worried?

    On 1: The vehicle for the alleged takeover is the World Conference on International Telecommunications, now underway in Dubai. The WCIT has been convened by the International Telecommunications Union (ITU), and it involves, in the ITU’s words, “review of the current International Telecommunications Regulations (ITRs), which serve as the binding global treaty designed to facilitate international interconnection and interoperability of information and communication services.” 

    It sounds harmless enough. The ITU (and its regulations) go back almost 150 years. In the late 19th and early 20th century, international telecommunications meant telegraphs and telephones, and the ITU was created by 20 European countries to standardize telephone/telegraph interconnection protocols so that a telegraph message or phone call placed in London could be received intact in Rome (and, somewhat later, Rio de Janeiro and Riyadh). It’s not a trivial task, involving both technical standards and economic arrangements (to work out a system for allocating transmission charges), and by all accounts the ITU performed it well. Because telecommunications facilities were generally state-owned and state-operated for most of this period in most of the world, the ITU was constituted as a kind of “treaty organization,” one to which nation-state governments sent official representatives from the Ministry of Telecommunications (or its equivalent) to negotiate with their counterparts from other countries.  After WW II, the ITU was absorbed into the United Nations as a “specialized agency.”