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.