Out-Law / Your Daily Need-To-Know

US government seeks rehearing in case on rights to access data overseas

19 Oct 2016, 11:45 am

The US government has called on the US Court of Appeals to rehear a case which concerns the extent to which US authorities have a right to access data about US citizens stored overseas.

In July the Court of Appeals ruled (63-page / 1.46MB PDF) that provisions outlined in US law do not permit US courts to "issue and enforce against US‐based service providers warrants for the seizure of customer e‐mail content that is stored exclusively on foreign servers".

However, the Department of Justice (DoJ) has now filed for a rehearing (90-page / 870KB PDF) of the case, which concerned US authorities' bid to access a Microsoft customer's email account as part of a criminal investigation. The data sought was stored by Microsoft on servers based in Ireland.

The DoJ said that the July ruling, which involved interpreting provisions of the US' Stored Communications Act (SCA), "has substantially impaired law enforcement’s ability to use a vital tool to investigate and prosecute all types of serious crime – including terrorism, public corruption, cyber-crime, securities fraud, child sexual exploitation, and major narcotics trafficking".

The DoJ said that the SCA's warrant provisions have extraterritorial effect and the July ruling "rests almost entirely on the erroneous conclusion that the enforcement of the disclosure obligation in the warrant would be an impermissible extraterritorial application" of those provisions.

In calling for a rehearing of the appeal, which overturned an earlier US district court ruling, the DoJ said the July ruling "is significantly limiting an essential investigative tool used thousands of times a year, harming important criminal investigations around the country, and causing confusion and chaos among providers as they struggle to determine how to comply".

It also said the judgment "breaks with over two decades of settled SCA enforcement and compliance, in holding that a US-based company can refuse to use US-based facilities and employees to comply with a court-authorised disclosure warrant, issued upon a showing of probable cause, merely because the company chooses in its sole discretion to store the electronic data sought by the warrant on its own overseas servers".