The United States should refrain from extraterritorial search warrants to seize electronic information stored abroad on foreign servers from United States Internet companies. A panel of the United States Court of Appeals for the Second Circuit in Microsoft Corporation v. United States (July 14, 2016), recently held that the 1986 Stored Communications Act did not authorize such warrants, but the Department of Justice will seek new legislation to do so.
Privacy is the rule and government encroachments are the exception under the Fourth Amendment in our liberty-centered constitutional universe. An investigation, simpliciter, causes the target continuing anxiety, hefty attorney's fees, and permanent reputational damage without legal redress. Thus, Congress should refrain from authorizing an investigative tool without tangible, non-speculative proof of necessity in the detection and prosecution of serious crimes.
That threshold has not yet been established by the Department of Justice. In the Microsoft case, for instance, the Department sought an extraterritorial search warrant to seize email content stored in Ireland in a narcotics investigation. The decision to store the email content abroad was made by Microsoft for business reasons without influence by the criminal suspect. In other words, Internet users cannot evade criminal justice by systematically storing incriminating electronic evidence in foreign countries beyond the reach of United States search warrants because they do not decide on storage locations.
Extraterritoriality, moreover, is a two-way street. If we adopt Internet laws with extraterritorial reach, other countries will do likewise. China, Russia, and other dictatorial nations would exploit extraterritorial reciprocity to gather electronic information stored in the United States to prosecute their political opponents. We would become morally complicit in the persecution of human rights advocates.
Even in dealings with non-dictatorial nations, extraterritoriality is a problem. In 2014, the Court of Justice of the European Union established an individual "Right to be Forgotten" (RTBF) on Internet search engines like Google under certain conditions. French privacy regulators are currently insisting that Google's compliance with a RTBF mandate requires the deletion of information not only from Google.fr, which is used by 97 percent of French users in lieu of Google.com. The French are also insisting on search engine deletions across all of Google's global domains, including the United States which does not recognize a RTBF. Google is appealing the ruling, but it would be standing on dubious ground if the United States was currently using extraterritorial search warrants to seize email content stored on servers in France.
Finally, extraterritorial search warrants are problematic because they would chronically confront United States companies with a Hobson's choice between compliance with United States law and compliance with foreign law. When the United States applied its antitrust laws exterritorialy, several foreign countries enacted retaliatory legislation like the United Kingdom's "The Protection of Trading Interests Act." It provided in relevant part: "[1] The Secretary of State is empowered to order non-compliance with commercial document and information orders by foreign courts or authorities against persons in the United Kingdom, when the material sought is outside the territorial jurisdiction of the ordering country." A foreign country would similarly respond to our extraterritorial search warrants for email content stored within its territorial jurisdictions with legislation prohibiting compliance unless authorized under the foreign country's privacy laws.
The laudable efficiencies of the World Wide Web that have created millions of new jobs and vast wealth would be impaired if Internet companies were routinely caught between two conflicting sovereign demands. Clear rules of the road are essential to business operations. There is nothing in the law enforcement side of the equation than comes close to offsetting the certain mischief that would be born from Congress authorizing extraterritorial search warrants to seize email content stored abroad desired by the Department of Justice.
The game is not worth the candle.