U.S., British officials push deal on cross-border data access for law enforcement

Representatives from the Department of Justice and the British government appealed to House lawmakers on Thursday to allow them to move forward on a bilateral agreement to serve warrants on data stored within one other’s borders.

Richard Downing, acting deputy assistant attorney general of the Justice Department’s criminal division, advocated for the proposal as a basis for improving cross-border data access to foreign law enforcement at a time when the need for electronic evidence in criminal cases is at an all-time high. 

{mosads}“Never before have we had as great a need for access to electronic evidence to solve crimes, bring criminals to justice, and to protect public safety,” Downing told members of the House Judiciary Committee at a hearing on Thursday. 

The issue has taken center stage following a landmark case last year in which a federal court ruled that Microsoft did not have to provide electronic data stored in Ireland requested in a warrant by the U.S. government.

Downing urged lawmakers to reverse the decision by proposing a clarifying amendment to current U.S. law, arguing that the decision has harmed the ability of law enforcement to do its job.

“That decision, and the choice by major U.S. providers to apply its ruling across the country, is preventing effective and efficient access to critical evidence where the provider has chosen to store that data oversees,” Downing said. 

Such an amendment, he said, could be part of a package laying the groundwork for a bilateral agreement allowing British law enforcement to obtain data from U.S. technology companies in connection with investigations not involving Americans, and for U.S. law enforcement to do the same when it comes to data stored in Britain.

Paddy McGuinness, U.K. deputy national security adviser, advocated for the proposal in the context of recent terror attacks in Manchester and London. 

“Crimes go on with the criminals unpunished as a result,” McGuinness said. “It constrains law enforcement and it makes us all less safe.”

While many lawmakers signaled the need to update current law governing law enforcement access to data across borders, they largely remained neutral on the idea of the idea of such a framework. 

The idea prompted bipartisan scrutiny, with some lawmakers raising questions about privacy and the extent to which U.S. persons could have their data seized.

Both officials insisted that U.S. persons would be afforded privacy protections, and that any data incidentally collected from American citizens or people inside the U.S. would not be used in investigations.

“It is not an expansion of U.K. investigatory powers,” McGuinness said. “It does not impact the privacy rights of U.S. persons.”

Others, including Reps. Darrell Issa (R-Calif.) and Zoe Lofgren (D-Calif.), raised concerns that any such agreement could conflict with data protection regulations set to take effect in Europe next year. 

“It would be a fool’s errand to create a situation in which companies would be damned if they do, and damned if they don’t,” Issa observed.

The officials maintained that such an agreement would be the most efficient way to improve law enforcement access to electronic evidence across borders—but signaled that they are waiting to get the go-ahead from Congress.   

“I see a close collaboration between the department and Congress as being an important part of this process, and in particular, Congress’s role at the beginning in passing the enabling legislation,” Downing said.

Once an agreement is hammered out, he said, it would be provided to Congress for review. Such a framework, the officials said, could serve as an international template for foreign law enforcement access to data across boundaries.