By Kenneth Merrill
Joining the Internet Governance Lab as a Faculty Fellow, Jennifer Daskal is an Associate Professor of Law at American University Washington College of Law, where she teaches and writes in the fields of criminal, national security, and constitutional law. She is on academic leave from 2016-2017, and has received an Open Society Institute Fellowship to work on issues related to privacy and law enforcement access to data across borders. From 2009-2011, Daskal was counsel to the Assistant Attorney General for National Security at the Department of Justice. Prior to joining DOJ, Daskal was senior counterterrorism counsel at Human Rights Watch, worked as a staff attorney for the Public Defender Service for the District of Columbia, and clerked for the Honorable Jed S. Rakoff. She also spent two years as a national security law fellow and adjunct professor at Georgetown Law Center.
Daskal is a graduate of Brown University, Harvard Law School, and Cambridge University, where she was a Marshall Scholar. Recent publications include Law Enforcement Access to Data Across Borders: The Evolving Security and Rights Issues (Journal of National Security Law and Policy 2016); The Un-Territoriality of Data (Yale Law Journal 2015); Pre-Crime Restraints: The Explosion of Targeted, Non-Custodial Prevention (Cornell Law Review 2014); and The Geography of the Battlefield: A Framework for Detention and Targeting Outside the ‘Hot’ Conflict Zone (University of Pennsylvania Law Review 2013). Daskal has published op-eds in the New York Times, Washington Post, and International Herald Tribune and has appeared on BBC, C-Span, MSNBC, and NPR, among other media outlets. She is an Executive Editor of and regular contributor to the Just Security blog.
Recently, we discussed her research and some of the many hot topics arising at the intersection of Internet governance and national security law.
You’ve worked at the Department of Justice, in the NGO space at Human Rights Watch, in the DC Public Defender’s office, and now in academia. How do these varied experiences inform your current work? When it comes to the intersection of Internet governance and national security law, does Miles’s law hold (does where you stand really depend on where you sit)?
The move from Human Rights Watch to the National Security Division at the Department of Justice was quite eye-opening. I thought I had prepared myself for the shift, but the adage that where you stand depends on where you sit turned out to be even more true than I had imagined. In many ways, it makes sense. At Human Rights Watch, the primary goal was to ensure that government pursued its national security policies in ways that protected human rights. In the government, the primary goal was to protect the American public from the perceived national security threats. Ideally, these two goals work in tandem, and both policy and law are generally at their best when it does. But the primary starting point is quite different and that alters the lens through which just about everything is viewed.
Much of your research focuses on law enforcement’s use of online data. To what extent are law enforcement officials concerned about the risks of fragmentation/balkanization associated with data localization and so-called “Internet sovereignty”?
That depends a great deal on who you ask (and where you sit). As Americans, we have long been used to having access to or control over a majority of the world’s data, thanks in large part to the dominance of American service providers. Fragmentation of the Internet is thus a threat that undermines this dominance. But for many countries, this is not the case. Mandatory data localization requirements and Internet fragmentation provide a means of ensuring access to sought-after data and asserting control.
From my perspective, these trends are quite concerning. Mandatory data localization laws are extremely costly for companies that want to operate internationally, often pricing smaller start-ups out of the market. The trend toward localization also serves as a means for authoritarian governments to limit free speech and assert increased control.
Any early indications as to how the new administration may handle cross-border data requests? Should we expect a more transactional approach, more multilateral cooperation, or a continuation of the status quo? What impacts could such decisions have on privacy and interoperability?
The new administration hasn’t yet taken a public stance on these issues, but there are two key issues that ought to be addressed in short order. First is the concerning impact of the Second Circuit decision in the so-called Microsoft Ireland case. As a result of that decision, U.S. warrants for stored communications (such as emails) do not reach data that is held outside the United States. If the data is outside the United States, the U.S. government must make a mutual legal assistance request for the data to the country where it is located – even if the only foreign government connection to the investigation is simply that the data happens to be held there. This makes little normative or practical sense, incentivizes the very kind of data localization efforts that the United States ought to be resisting, undercuts privacy, and is stymying law enforcement’s ability to access sought-after data in legitimate investigations.
As numerous Second Circuit judges opined, Congress should weigh in—and the new administration should support an update to the underlying law. Specifically, Congress should amend the underlying statute to ensure U.S. law enforcement can access to extraterritorially-located data pursuant to a warrant based on probable cause, but also ensure that both law enforcement and the courts take into account countervailing foreign government interests.
Conversely, foreign governments are increasingly frustrated by U.S. laws that preclude U.S.-based companies from turning over emails and other stored communications content to foreign governments – even in situations where the foreign governments are seeking access to data about their own citizens in connection with a local crime. These frustrations are also further spurring data localization requirements, excessively broad assertions of extraterritorial jurisdiction in ways that put U.S. companies in the middle of two conflicting legal obligations, and use of surreptitious means to access sought-after data. These provisions should likewise be amended to permit, in specified circumstances, foreign governments to access that data directly from U.S.-based companies. The legislation should specify baseline substantive and procedural standards that must be met in order to benefit from this access – standards that are essential to protecting Americans’ data from overzealous foreign governments.
What role do private companies play in establishing the normative and legal bounds of cross-border data requests? Do you see this role changing going forward?
Private companies play significant roles in numerous different ways. They are, after all, the recipients of the requests. They thus decide when to object and when to comply. They also have a strong policy voice – meeting with government officials in an effort to shape the rules. And they also exert significant power through a range of technological and business decisions about where to store their data and where to locate their people; these decisions determine whether they are subject to local compulsory process or not.
While the majority of ISPs and content platforms are currently located in the U.S., many have expressed concerns about the long-term impact(s) policies like Trump’s travel ban could have for Silicon Valley. Taking these concerns to their logical conclusion, do you see the geography of ISPs and content platforms changing significantly as a result of these policies, and if so, how might these changes alter the legal landscape vis-a-vis cross-border data requests?
I think it’s a fair assumption that whatever the reason, at some point the share of ISPs and content platforms located in the United States will decrease. It is, as a result, critically important that the United States think about the broader and long-term implications of the rules it sets. At some point, it may no longer hold the dominant share of the world’s data and will need the cooperation of foreign partners to access sought-after data. The rules and policies that are adopted should take these long-term interests into account.
Can you tell us a bit about what you’re currently working on?
I continue to work on issues associated with law enforcement access to data across borders, engaging in a comparative analysis as to how some of these key issues are playing out in both the United States and the European Union. More broadly, I am also examining the increasingly powerful role of private sector in setting norms, policies, and rules in this space. And I continue to do research and writing on the Fourth Amendment as it applies to the digital age.