Leadership Needed at DOJ

The Department of Justice (DOJ) issued a search warrant to Microsoft requiring it to produce the emails of an alleged Irish drug dealer. The emails are stored in Ireland on a Microsoft server. Irish law generally prohibits release of a citizen’s private information without authorization by Ireland – which has not been forthcoming. Microsoft faces legal sanctions regardless of what it does.

The American public approves of serious punishment for serious drug dealers, but this target is outside DOJ’s grasp. Conflict between Irish law and the DOJ’s wishes must be sorted out at a sovereign nation level. The DOJ should not evade resolution with Ireland by forcing Microsoft to violate Irish law by handing over the evidence.

We would not tolerate a foreign firm violating US law merely because its country of origin extorted it. We would likely expel the firm and make future exports difficult for that nation. Likewise, DOJ’s behavior is bad for foreign relations (other nations are watching us) and it is potentially disastrous for jobs tied to exports of US technology products.

NSA’s spying nudged some nations into considering a separate, balkanized Internet. As a result, there are now reports are that Verizon, as well as Microsoft and IBM, have lost customers and contracts abroad, because countries want their citizens’ information protected.

DOJ’s arrogance toward Irish sovereignty on privacy laws is adding fuel to the balkanized Internet movement. The US should not be burning customer relationships that underpin the decent jobs we still have.

Unfortunately some regard following the law as “optional.” Attorneys within the DOJ, some federal agency attorneys, and some within law enforcement show a predilection for combat boots and sharp elbows on privacy issues.

In 2010 the DOJ without a warrant demanded that Yahoo cough up the emails of criminal suspects.

In 2013, “federal prosecutors secretly obtained two months’ worth of telephone records” from 20 office, home and cell telephone lines of Associated Press reporters. Most likely the seizure was part of a hunt for “who had leaked information to the news service about a foiled terror plot in 2012.” Seizing the working materials of the press can damage the public’s interest by suppressing investigations.

In another instance, the DEA gave local law enforcement access to NSA intercepts (intended to target foreign terrorist or spies) for building cases against domestic criminals. The DEA required the police and prosecutors to later redesign the cases to exclude references to the unlawfully used surveillance materials – this evidence fraud is called “parallel construction” and has tainted an unknown number of cases. Convictions obtained through parallel construction will have to be tossed.

DOJ has tried to seize sole control of disputes between government agencies and individuals who file FOIA requests. This sinister move could shield DOJ’s every malfeasance from public review.

DOJ has been chronically lacking in adult supervision. The Irish drug dealer incident is an example of DOJ’s prosecutorial tunnel-vision. The DOJ might score a perp-walk for the evening news but the economic cost to the public could be disastrous.

For example, Forrester Research estimates the economic backlash on the U.S. tech sector could be as high as $180 billion per year. The American Consumer Institute estimates that such cost would be equivalent to losing more than 2 million U.S. jobs or roughly an increase in the unemployment rate from 6.1% to 7.6%. In short, the DOJ’s request for U.S. tech firms to turn over data stored in foreign countries could lead to a devastating cost for American high-tech businesses and eventually that could spill into non-tech commerce as well.

Last Thursday, Senators Hatch, Coons and Heller introduced The Law Enforcement Access to Data Stored Abroad Act to address this issue by limiting the reach of warrant to U.S. citizens and companies, as well as keeping some conformity with foreign treaties and laws. Congress should give this bill its full and immediate consideration before the negative economic consequences of the DOJ’s actions harm U.S. interests abroad.

The American public needs an leader – someone with the integrity to act with honesty and someone able to wisely choose between bagging a foreign drug dealer or protecting the American public’s future jobs and prosperity.

Alan Daley writes for The American Consumer Institute Center for Citizen Research, a nonprofit education and research organization. For more information, visit www.theamericanconsumer.org.

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