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US Government Lacks Authority to Seize Data Stored Overseas, BSA Argues in Court Filing

WASHINGTON, DC — December 15, 2014 —

The US government has no legal authority to force a US company to turn over data stored on overseas servers, BSA | The Software Alliance argued today in a joint amicus brief filed in US Appellate Court in the case of Microsoft Corporation v. United States of America.

“This case is important for determining the rules of the road in the digital age, so we need to get it right,” said BSA President and CEO Victoria Espinel. “The government’s position would have a chilling effect on the international market for cloud-based services. Asserting extraterritorial reach with a US warrant violates fundamental principles of international comity and the plain language of US law. The Court should reject the government’s attempt to expand US authority into the territory of other nations and override their laws.”

BSA filed the brief jointly with ACT | The App Association, the Center for Democracy and Technology, the Chamber of Commerce, and the National Association of Manufacturers.

A summary of the groups’ argument follows:

The U.S. government is wrong in asserting that a warrant issued under 18 U.S.C. § 2703(a) may compel a person or entity within the United States to search and copy electronic data stored in another country, cause the transmission of the copy to the United States, and turn it over to the government. 

First, the government’s position — if adopted by this Court — will significantly deter the use of remote data management technologies by businesses and individuals, particularly their use of U.S. cloud services providers, and thereby undermine a significant contributor to U.S. economic growth.

The data that companies and individuals store with data services providers consists of the most confidential information about their business plans and personal lives, respectively. If fully utilizing data services to improve manufacturing processes, and reaping the associated economic benefits, can occur only if users accept increased access to that information by the U.S. government, then businesses and individuals will be reluctant to store their information “in the cloud.” That means that the benefits of cloud computing — cheaper and more flexible data services, enhanced security, and reduced equipment costs — will not be realized, and the adverse consequences for the U.S. economy will be substantial.

Second, there is no basis in law for the extraordinary result sought by the United States. Affording extraterritorial reach to U.S. warrants violates fundamental principles of international comity and the plain language of 18 U.S.C. § 2703(a).

Indeed, the government’s argument here parallels its contention in Riley v. California, 134 S. Ct. 2473 (2014), unanimously rejected by the Supreme Court, that the search-incident-to-arrest doctrine developed in the context of physical materials such as wallets and address books should apply in the same manner to the vast amounts of information stored digitally on a cellphone. Here, the government again attempts to leverage a significant real-world difference between physical evidence and electronic data (the latter’s accessibility via the Internet) to expand its authority and diminish privacy protection — to extend warrants extraterritorially and circumvent the laws of the nation in which the data is stored.

Click here to download the full amicus brief.

Media Contact

Anna Hughes
202-530-5177
annah@bsa.org


Jamie Rismiller
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About BSA

BSA | The Software Alliance (www.bsa.org) is the leading advocate for the global software industry before governments and in the international marketplace. Its members are among the world’s most innovative companies, creating software solutions that spark the economy and improve modern life. With headquarters in Washington, DC, and operations in more than 60 countries, BSA pioneers compliance programs that promote legal software use and advocates for public policies that foster technology innovation and drive growth in the digital economy.
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