In an age of technology, the Fourth Amendment protection against unreasonable searches and seizures is increasingly being tested in new contexts. One of the issues currently being played out in the courts is that of the government’s ability to access electronic data located outside a court’s jurisdiction.
Last year, the FBI implemented a new procedural rule approved by the U.S. Supreme Court which allows, in some circumstances, federal judges to grant search warrants allowing investigators to remotely access computers located outside the district where activities related to a crime may have occurred. The change gives federal judges the ability to essentially warrant FBI hacking of devices outside their jurisdiction, or potential even devices located overseas.
The expansion of the FBI’s search powers is also being played out in another set of cases specifically involving the government’s ability to search data stored on overseas Internet servers. In both cases, U.S. authorities obtained warrants under the 1986 Stored Communications Act, which regulates the voluntary and compelled disclosure of electronic communications and records of a transactional nature. The law is important, since major tech companies like Google and Microsoft receive thousands of requests from federal authorities every year to disclose user data for purposes of criminal investigation.
In one case, a federal appeals court in New York ruled last year that federal investigators in a narcotics case could not compel the production of emails kept on an Internet server located in Ireland. The basis for that decision was the presumption against extraterritoriality, which states that legislation is presumed to only apply within U.S. territory unless the legislation makes it clear that it also applies in other territories.
The other case came to a different conclusion. Next time, we’ll look at the recent decision as well as other related legal issues being played out in the courts, and the importance of working with an experienced attorney to address Fourth Amendment issues in the context of criminal defense.