Greg Nojeim, Senior Counsel and Director of our Freedom, Security and Technology Project, guest wrote for Lawfare, a site published by the Lawfare Institute in cooperation with the Brookings Institute. It’s solely dedicated to “that nebulous zone in which actions taken or contemplated to protect the nation interact with the nation’s laws and legal institutions.” We’ve published the first few paragraphs here – click below for the full text.
MLAT Reform Proposal: Protecting Metadata
This is the second post in a series analyzing the Daskal-Woods reform proposal for law enforcement demands for communications content across national borders. In the first post, I examined how the proposal dealt with communications content. Here, I explain why the proposal should also account for cross-border law enforcement demands for metadata.
In responding to my first post, Daskal and Woods did not disprove my key point: their proposal strips privacy protections currently afforded by U.S. law from certain non-U.S. persons who are the subject of a content demand made by a foreign government. The privacy protection at issue is the requirement that a U.S. judge determine that the facts establish “probable cause” of a crime prior to disclosing any communications content. My first post surfaced this issue so the proposal could be fully considered, in particular, by those individuals outside the U.S. who are most effected. Daskal and Woods characterize the extension of the probable cause requirement—which protects the privacy of the content of non-U.S. persons abroad—as “imperialistic.” And that’s one way to look at it. I view it more as a gift, although I am not sure it is valued as such by people outside the U.S. One potentially more productive approach would be acknowledge that the Daskal-Woods proposal contemplates some privacy loss under U.S. law for non-U.S. persons in the context of communication content, and seek to counterbalance this loss with a privacy gain in the form of heightened protection for metadata.
Foreign law enforcement demands for disclosure of metadata are treated differently from demands for content disclosure under the U.S. Electronic Communications Privacy Act (ECPA). Absent an emergency or other exception, ECPA bars communications service providers from disclosing communications content to anyone unless a U.S. judge issues a warrant based on probable cause. However, under ECPA, service providers may voluntarily disclose metadata to any foreign government that asks for it.
Coalition Urges Senate Not to Let Companies Waive Financial Regulations for AI
CDT joined AI Now Institute, American Civil Liberties Union, and several organizations dedicated to tech policy, consumer protection, and civil rights in a letter to Senate leadership and the Senate Banking, Housing, and Urban Affairs Committee opposing the “AI Innovation Labs” language in Sec. 10509 of the CLARITY Act.
CDT-led Coalition Calls for Transparency for White House AI Framework
CDT and Americans for Responsible Innovation led a broad, bipartisan coalition of over two dozen civil society groups in calling on the White House to release its Framework for review of frontier AI models.
CDT Amicus Brief Calls on Fourth Circuit to Rein In Geofence Warrants
Earlier this year the Supreme Court ruled in Chatrie v United States that the Fourth Amendment protected all cell phone location information, which CDT lauded as a landmark decision, but sent the case back down to the Fourth Circuit to assess the propriety of the geofence warrant at issue.
CDT and Partners Post Floor Alert Opposing CA SB 1013 Automated License Plate Readers Bill
The best way to ensure that Automated License Plate Readers are not abused is to limit the retention of stored data and to keep loopholes to lawful process closed. CA SB 1013 is a step in the wrong direction, and we urge the California legislature to reject this approach.
