In wake of Microsoft litigation, Senators Hatch, Coons, Heller Introduce Legislation to Amend ECPA

U.S. Senators Orrin Hatch (R-Utah), current member and former Chairman of the Senate Judiciary Committee, Chris Coons (D-Del.), member of the Judiciary Committee, and Dean Heller (R-Nev.), introduced legislation to amend the Electronic Communications Privacy Act (ECPA) by addressing the conflict of laws for cloud services providers in order to safeguard Americans’ electronic data stored abroad. The Law Enforcement Access to Data Stored Abroad (LEADS) Act ensures that law enforcement has the tools necessary to execute search warrants where necessary, so long as they comply with the laws of the foreign country where the electronic data is stored.

“The way electronic data is used and stored globally has changed considerably since Congress enacted ECPA nearly 30 years ago,” Hatch said. “This presents unique challenges for a number of industries, who are often faced with the question of whose laws they must follow – American law or the laws where the electronic data is stored. Senators Coons and Heller understand the uncertainty created by this conflict of laws and that we should address this serious and growing problem as Congress undertakes ECPA reforms.”

“Law enforcement agencies wishing to access Americans’ data in the cloud ought to get a warrant,” Coons said, “and just like warrants for physical evidence, warrants for content under ECPA shouldn’t authorize seizure of communications that are located in a foreign country. The government’s position that ECPA warrants do apply abroad puts U.S. cloud providers in the position of having to break the privacy laws of foreign countries in which they do business in order to comply with U.S. law. This not only hurts our businesses’ competitiveness and costs American jobs, but it also invites reciprocal treatment by our international trading partners.”

“I am proud to work with Senator Hatch and Senator Coons on the LEADS Act,” Heller said. “Broadband internet extends beyond borders and our laws need to balance the privacy rights law-abiding citizens are guaranteed under the 4th Amendment with the ability for law enforcement to do its job. This legislation is a step in the right direction providing the necessary clarity with our laws, and I am pleased to join in this effort.”