Think Your Electronic Information Is Safe Overseas? Think Again!

Think Your Electronic Information Is Safe Overseas? Think Again!

In these times, trial evidence is mostly in electronic form. Electronically Stored Information (ESI) refers to evidence that is stored on servers, computers, smartphones, or in the cloud.

In order to obtain electronic evidence to be used in court, specific guidelines must be followed. Rule 41 of the Federal Rules of Criminal Procedure explains exactly how an application for a search warrant has to be drafted and submitted. Generally, the search warrant requests all correspondence within a specific date range.

To protect themselves, people are trying to make their technology warrant-proof. Encryption, different and altered IP addresses are utilized. In addition, information is stored overseas because the United States does not have extraterritorial jurisdiction—warrant power does not extend outside of the United States.

Information stored overseas can be obtained; however, the process is more prolonged and labor-intensive.

Microsoft v. the United States of America

Under the Stored Communications Act, a judge from Federal Court in New York issued a warrant compelling Microsoft to release a customer’s email information. This decision was later reversed in the 2nd Circuit Court of Appeals because the data was located in a server outside of the United States.

The Stored Communications Act (SCA) allows the government to use a warrant to obtain email contents that have been stored for 180 days or less. However, the judge did not have extraterritorial jurisdiction, and according to Rule 41, the warrant issued was only valid in the United States.

Currently, the SCA is only applicable domestically. In order to obtain information from another country, additional and often time-consuming steps must be taken—a warrant is not sufficient.

The Mutual Legal Assistance Treaty (MLAT) is an agreement between countries for the purpose of sharing information. While collaborative, this tactic takes longer to facilitate. Similarly, asking another country’s courts to honor a U.S. search warrant is not particularly efficient nor confidential.

Proposed Amendments to Rule 41

Congress is considering 2 significant changes to the current law.

  1. Expanding Jurisdiction: This would enable judges to sign warrants that extend beyond the United States. However, it is unclear whether other countries would honor the warrant should this addition pass.
  2. Select Magistrate Judges: This would define a select group of judges who are authorized to grant search warrants across the United States. (Currently, if the FBI seeks a warrant in Idaho, a magistrate judge in Idaho issues it). This amendment would ensure consistency; each judge would be fully aware of the rules, and forum-shopping would be eliminated.

Concerns About the Proposed Amendments

Many individuals, as well as public interest groups, such as the National Association of Criminal Defense Lawyers & the Reform Government Surveillance Coalition, are concerned that the amendments threaten the civil liberties of everyday internet users.

Google, Microsoft, Apple, and LinkedIn are also publicly against the amendments. These companies believe that the Fourth Amendment rights of citizens will be eroded as a result.

We will continue to report on new developments as Congress debates these changes. Do you agree that the proposed changes violate the Fourth Amendment? To discuss technology, warrants, and your rights, you better call Saul at (212) 363-7701!

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