In our last post, we began looking at the important issue of the Fourth Amendment in criminal defense, particularly in the context of investigation of suspected Internet crimes. As we noted, the federal government’s ability to search data stored on overseas servers is part of this discussion. Although the FBI’s attempt to do this was unsuccessful in a narcotics case last year, another case against Google ran in the opposite direction.
In the Google case back in February, a federal judge ordered Google to transfer emails from a foreign Internet server to the FBI as part of a domestic fraud investigation. Google had disclosed to the FBI data that was only stored in the United States, but objected to turning over data from foreign servers.
In compelling the production of the emails from Google under a search warrant, the judge rejected the argument that the investigation ordered by the search constituted a seizure, explaining that it does not involve meaningful interference in any account holder’s possessory interests and that it is only when the data is handed over to the United States that a privacy infringement occurs. For this reason, the company’s attempted challenge to the warrant’s scope fell flat. The case is obviously in tension with an approach which says that the Stored Communications Act cannot be applied to evidence located overseas.
In addition to these cases, which have implications for white collar crimes, there has been a steady increase in the number of criminal cases in which the issues of privacy and search warrant requirements has come up in connection with cell phones and other password-protected digital devices. We’ll say more about this in a future post, and the importance of working with an experienced attorney to address search and seizure issues in the context of criminal defense.
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