DOJ to propose ‘legislative fix’ on overseas digital evidence


The Justice Department plans to submit a “legislative fix” aimed at allowing it to demand data stored on foreign soil, an official said Thursday.

The fix is meant to counter a recent ruling by the Second Circuit Court of Appeals, which the Justice Department is challenging, that determined U.S. officials need international agreements to demand data stored on foreign soil.

Assistant Attorney General Leslie Caldwell explained that officials felt hamstrung by the recent Microsoft decision that U.S. officials could not require the company to turn over emails stored in Ireland using the same process as emails stored in the U.S.

Internet-based companies routinely place data centers in other countries. Prosecutors are traditionally required to use “mutual legal assistance treaties” (MLATs) to request foreign governments provide physical evidence residing on their own soil. 

“We have mutual legal assistance treaties with less than half the countries in the world,” Caldwell said during a talk at the Center for Strategic and International Studies.

“Some of those countries put very strict assistance on what kind of assistance they will provide. Some of those countries we have treaties with, but as a practical matter they don’t provide evidence to us,” she said.

Even in Ireland, the site of the Microsoft case and what Caldwell referred to as the best of circumstances for MLATs, “it takes them 15 to 18 months to execute a request for assistance from a foreign country.”

Caldwell provided no other details on a potential legislative fix.

Microsoft argued that providing data stored in foreign countries could easily run afoul of the laws of sovereign nations.

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