Privacy Law Adapted to a New Technological World in Age of Cloud Computing

That stuff Edward Snowden was talking about has begun to cost us money.

Earlier this month, the Court of Justice for the European Union struck down an international legal regime that governs how data travels back and forth from Europe to the United States.

Known as the EU-U.S. Safe Harbor, the agreement provided rules of the road for the 4,000 companies that transmit personal data, such as information on sales of goods, telephone and Internet communications and other matters. This could spell trouble for airlines that book overseas passengers, passengers that need visas sent to other countries and firms attempting to execute routine sales.

Today, much of our most personal information is stored in clouds ??? our text messages, bank records, emails, purchasing records, etc. Our current privacy law dates to 1986, and the agreement recently struck down dates to 2000, when the Internet was up and running but cloud technology had not been born.

So, the question of how to handle information in clouds has not been dealt with. A new agreement will be needed as well as implementing legislation from Congress. The agreement should seek to address the needs of the smallest and largest companies doing business across the Atlantic. It also will have to provide for Europeans to have their day in American courts when necessary and for the U.S. to rethink how it handles the competing interests of privacy and national security.

But what???s important here is the Europeans are having to push us on privacy and even have signaled by dropping this agreement they are willing to at least explore foregoing doing business with us until this is straightened out.

Privacy is a constant among the measures used by think tanks and policymakers to determine the level of economic freedom of a given country. It is considered essential to modern commerce, particularly with Europe from which nearly 40 million Americans order products online each year.

The EU court struck down the agreement after concerns were raised in Ireland about whether Europeans could continue to feel comfortable with their personal information moving to the United States because of the potential here for the sort of broad and blanket collection of personal information by U.S. authorities that Snowden revealed.

The EU court ruled the actions of U.S. authorities were contrary to ???the fundamental values protected by the Irish Constitution.??? Before that, the High Court in Dublin referred to the ???massive overreach??? by U.S. authorities that Snowden revealed.

It violates our Constitution as well, in particular the rights granted under the 4th Amendment, which grants Americans freedom from unwarranted search of their homes and personal effects.

Last year, the Supreme Court ruled police must obtain a judicial search warrant before searching the contents of a phone. The information on the phone, which is stored in a cloud, was said to hold ???the privacies of life??? for many Americans. The Court had to make law, in essence, because none existed.

And it???s not always people who move their information around. It???s usually done by companies, sometimes by governments ??? and it is moved constantly without the people even knowing. You can???t protect your privacy rights if you don???t even know when or where your information is going and if you know government has and uses constant access to it.

Obviously, we need an agreement that enables security agencies to access records when necessary and that provides a day in court for those whose records are subject to release. We need an agreement that refines practices and assures our partners in Europe we respect both their privacy and our 4th Amendment.

There always will be tension between security and privacy needs. The stakes are higher now that billions are spent on Internet sales ??? national and international ??? and terror threats span the globe. But what the loss of this agreement tells us is that we in the U.S. are out of step on privacy and must do more to protect it if we are to participate in the modern economy.

The right to privacy is a fundamental right of all free people. The Declaration of Independence says these rights are endowed by our Creator and unalienable.

In other words, since these rights come from God and not government, government cannot take them away. They are unalienable, meaning we can???t be separated from them even by restrictions imposed after 9/11.

Data needs to move across the Atlantic, and authorities occasionally will have legitimate reason to believe they should be able to access the data in the public interest. A new agreement on data flow was required because new understandings of freedom and privacy and technology have arisen.