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Op-ed: Hatch bill clarifies what is private in the digital world

First Published      Last Updated Nov 12 2016 03:00 pm

When lawmakers enacted the Electronic Communications Privacy Act of 1986, they never conceived of the world we live in today. Fewer than 10 percent of U.S. households had a computer at home, the internet was a mystery to most and cell phones — which looked nothing like today's powerful devices — were used by fewer than 1 percent of Americans.

Today, we live in a digital world powered by the cloud and awash in data. In Utah and around the country, Americans look at this transformation and worry about their privacy and the security of their data. As cloud computing increasingly transforms how we live, work and communicate, these concerns will only grow. It's clear our privacy laws need to catch up to today's technology.




For nearly two years, Sen. Orrin Hatch has led on this issue, authoring legislation to modernize antiquated laws that govern our privacy in the digital age.

We need this legislation. Digital privacy is an issue that impacts us all — whether you are working at the Microsoft Utah Development Center in Lehi, storing data on your home computer in Draper or operating a business in Salt Lake City.

This summer, a federal court of appeals issued a ruling with important implications for our privacy.

In a case brought by Microsoft, the court agreed that Congress did not give our government authority to use search warrants to reach personal data beyond U.S. borders. It marked an important victory for the principle that an individual's personal privacy should be protected by the laws of their own country.

Because the Microsoft decision reflects concerns that are broader than just one case, the court called on Congress to develop solutions to address the issues raised by both law enforcement and privacy advocates.

These solutions — both domestic legislation and international treaties — must reflect the realities of a technology-driven world that depends on the free flow of digital information. We need to update our laws in a way that protects human rights and recognizes the role that law enforcement plays in keeping us safe.

In May, Hatch introduced the International Communications Privacy Act (ICPA). This legislation clarifies when and how law enforcement can obtain the electronic communications of U.S. citizens, no matter where the person or the communications are located. The bill also provides a legal framework by which U.S. law enforcement can obtain communications of foreign citizens, consistent with international law. It respects people's rights to privacy and allows law enforcement to get the data it needs to protect our communities.

In an age when many debates center around the battle between privacy and security, ICPA is a way to advance both. That is why it has bipartisan support in both chambers of Congress and across industries.

Though the court decision is recent, the questions it addresses are rooted in our founding principles. When the Constitution was written, Americans believed in the balance of governmental power and individual rights. That has not changed. To move forward, we need practical and realistic legal rules that respect privacy and human rights and help law enforcement keep us safe.

And there's more that should be done beyond ICPA. We believe that Americans have the right to be notified if the government obtains their information held in the cloud, just as they are notified when the government seizes their paper records. A person's records are no less private — and no less deserving of legal protection — simply because they are stored digitally.

At Microsoft, we are doing everything we can to protect the privacy of our customers in Utah and around the world. But we also need strong leaders in Congress, like Hatch, to advance strong solutions that provide clear and necessary rules-of-the-road to move technology forward while ensuring no one is left behind.

Brad Smith is president and chief legal officer of Microsoft Corp.

 

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