Constitutional Scholars Offer New 'Framework' for Agreement on Protecting Data
[quotes] Among the many concerns, the current state of affairs is incentivizing data localization requirements as a means of ensuring local governmental access to data, as well as the use of other surreptitious means of accessing sought after data, writes former Justice Department counsel for national security Jennifer Daskal in her paper Whose Law Governs in a Borderless World?
Daskal in her paper examines how current policy gaps are creating pressure on national governments to impose local requirements on the storage and handling of data.
"It is time to shift the focus away from data location, and toward a range of factors that better reflect the sovereign, security, and privacy interests at stake", she argues. "In particular, target location and nationality should replace data location as key bases for determining law enforcement jurisdiction over data."
Daskal calls on Congress to revise the Stored Communications Act, which sets down requirements for voluntary and compelled sharing of information by internet service providers with the government, as a way to undercut pressures on nation-states to impose local data requirements.
"Two key changes to the SCA would begin to make that shift. First, Congress should expand the reach of the U.S. warrant authority to cover U.S. persons and residents wherever located and otherwise ensure U.S. law enforcement access pursuant to a warrant based on probable cause to sought-after data in a timely manner," Daskal argues.
"Second, Congress should amend the provision of the SCA that categorically bars foreign governments from accessing sought-after communications content from U.S. providers," according to Daskal.
Weber, Rick and Daskal, Jennifer C., "Constitutional Scholars Offer New 'Framework' for Agreement on Protecting Data" (2017). Popular Media. 453.