Editor’s note: This is an abbreviated version of a speech Kent delivered today at The Heritage Foundation in Washington, D.C.
For as long as we’ve had legal systems, prosecutors and police have needed to gather evidence. And for each new advance in communications, law enforcement has adapted. With the advent of the post office, police got warrants to search letters and packages. With the arrival of telephones, police served subpoenas for the call logs of suspects. Digital communications have now gone well beyond the Postal Service and Ma Bell. But the laws that govern evidence-gathering on the internet were written before the Information Revolution, and are now both hindering the flow of information to law enforcement and jeopardizing user privacy as a result.
These rules are due for a fundamental realignment in light of the rapid growth of technology that relies on the cloud, the very real security threats that face people and communities, and the expectations of privacy that internet users have in their communications.
Today, we’re proposing a new framework that allows countries that commit to baseline privacy, human rights, and due process principles to gather evidence more quickly and efficiently. We believe these reforms would not only help law enforcement conduct more effective investigations but also encourage countries to improve and align on privacy and due process standards. Further, reducing the amount of time countries have to wait to gather evidence means would reduce the pressure to pursue more problematic ways of trying to gather data.
Current laws hinder law enforcement and user privacy
The U.S. Electronic Communications Privacy Act (ECPA) governs requests for content from law enforcement. Under ECPA, foreign countries largely have to rely on diplomatic mechanisms such as Mutual Legal Assistance Treaties (MLAT) to obtain content that is held by a company in the United States. The last