US may let foreign states serve warrants on tech firms, but only if feds can do the same

The deal, which would have to be approved by Congress, will give the US government "reciprocal" authority to search data in other countries.
Written by Zack Whittaker, Contributor

(Image: file photo)

The US government is pushing for a new agreement that will allow foreign states to directly serve data demands and wiretap requests on US tech giants.

In return, the US would get reciprocal access to search data stored in other countries, a move that will likely reignite concerns over the US government's surveillance and intelligence-gathering efforts in light of the Edward Snowden revelations.

According to a report by The Wall Street Journal, the move would leapfrog existing mutual legal assistance treaties, which require that foreign states contact local law enforcement in order to provide assistance from friendly global counterparts for criminal and national security cases.

Instead, the new rules would grant foreign nations the right to serve a warrant for data, or a wiretap request for real-time information, directly to companies like Apple, Facebook, Google, and Microsoft.

The UK is slated to be the first in line for the new data-sharing agreement, the newspaper said.

The timing isn't all that surprising. News of the potential data-sharing agreement landed just one day after the Justice Dept. lost a case in which prosecutors sought access to emails stored in one of Microsoft's overseas datacenters in Dublin, Ireland.

The government argued that prosecutors should have access to the data, sought in a narcotics investigation on an Irish citizen, because the data was hosted by a US-based company.

Microsoft challenged the original ruling, which would have forced the company to comply with the governments' demands. The appeals court then reversed a charge of contempt against the Redmond giant, granting the firm the opportunity to appeal the demand. Microsoft then won the case in a ruling last week.

Microsoft was willing to help, as were the Irish authorities, but the mutual legal assistance channels used to facilitate cross-border law enforcement efforts were bypassed, and never used by US prosecutors. The first ruling magistrate judge in the case said prosecutors were right to, given that the process is "generally... slow and laborious."

Privacy advocates agreed, arguing that the process can be "cumbersome" in non-life threatening cases.

But mutual legal assistance treaties have seen their successes. Microsoft said in the aftermath of the Paris attacks in November it had an "average turnaround time of under 30 minutes" to respond to foreign government requests.

That said, a coalition of tech companies -- which includes Microsoft -- said in a post that they are "encouraged" by the discussions, adding that the mutual legal assistance treaty process "remains an important tool for this and should be modernized."

Any such effort would have to be approved by Congress, however; a process that's already marred with one-upmanship, which often stymies the passing of both surveillance authorizations and privacy laws alike.

In other words, it's unlikely that anything will happen in the next few months with an impending election just months away.

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