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Searches Without Frontiers

BY Jonathan B. New
September 02, 2015

In order to keep up with the continuing evolution of electronic communications, U.S. law enforcement agencies are now, more than ever, setting their sights on data stored overseas. Private communications, such as e-mails, are increasingly being collected by U.S. companies and then processed and stored using cloud computing and data servers located abroad. Law enforcement theoretically has at its disposal Mutual Legal Assistance Treaties (MLATs) ' agreements between two or more countries that facilitate cross-governmental collaboration in criminal investigations and prosecutions. But the MLAT process is complicated, time-consuming and ill-equipped to handle 21st-century data storage and privacy issues. The result is that law enforcement agencies conducting criminal investigations or prosecutions increasingly find that vital data evidence lies beyond their jurisdictional reach.

Background

The first half of 2015 has seen vigorous debate over U.S. law enforcement's authority to seize data evidence stored overseas. The government is pressing along a number of fronts ' in litigation and through proposed amendments to the Federal Rules of Criminal Procedure ' to sidestep the MLAT process and gain quick access to such evidence. But technology companies and providers of cloud computing services are echoing concerns in the international community that such efforts undermine mutually agreed-upon limits on cross-border intrusion. The government's efforts also raise serious questions about the limits of Fourth Amendment protections. U.S. companies that store data overseas should therefore take stock of the current state of play: U.S. law enforcement is pressing forward ' sometimes successfully ' to reach data stored beyond U.S. borders. Whatever the outcome of these efforts, companies will need to adjust to the new realities and adopt appropriate protocols for handling their data and for responding to government inquiries while respecting local data privacy requirements.

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