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Herring Working to Protect Tools to Combat International Criminal Operations

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Virginia Attorney General Mark Herring (FILE IMAGE) Virginia Attorney General Mark Herring (FILE IMAGE)

Release from Commonwealth of Virginia Office of the Attorney General:

RICHMOND (July 31, 2017) - Attorney General Mark Herring has joined a bipartisan coalition of attorneys general who have filed an amicus brief seeking confirmation from the U.S. Supreme Court that law enforcement agencies can still collect electronic evidence, such as emails, even when the data may be stored outside of the United States. Such electronic evidence collection can be critical for attorneys general and other law enforcement agencies investigating child exploitation, drug traffickers, and violent gangs operating in the United States and foreign countries.

"My top priority as attorney general is keeping Virginians, their families, and their communities safe, and with criminal enterprises increasingly operating internationally or utilizing international servers we need every resource available," said Attorney General Herring. "We're working to crack down on drug dealers, human traffickers, child predators, violent gang members and more, and the Department of Justice's request in this case can help us do that. I hope the U.S. Supreme Court will see that too."

Attorney General Herring and his fellow state attorneys general argued in their brief that email providers around the country are relying on a lower court decision in United States vs. Microsoft to refuse compliance with warrants issued under the Stored Communications Act (SCA) and similar state laws. These refusals have occurred even when law enforcement agencies are seeking data on violent gang activity, cases involving the sexual exploitation of children, and other heinous crimes. The only foreign aspect of many of these cases is the location of the server where the provider has chosen to store its customers' data. The brief argues that the Supreme Court's review "is necessary to address the Second Circuit's remarkable conclusion that a private company has unfettered discretion to shield evidence of crime from law enforcement, simply by electronically sending that evidence out of the jurisdiction."

In the Microsoft case, a federal judge issued a search warrant under the SCA authorizing the search of a specific Microsoft Outlook email account. The judge found probable cause to believe the account was being used to traffic narcotics in the United States. Instead of providing the information requested in the warrant, Microsoft refused to comply because the data was stored on a server in Ireland. Instead, Microsoft asserted it would be an impermissible extraterritorial application of the SCA to require the company to retrieve data from a foreign server, even though Microsoft could access that data from its offices in the United States. The U.S. Court of Appeals for the Second Circuit agreed with Microsoft and quashed the warrant. The federal government has asked the U.S. Supreme Court to review and reverse the Second Circuit's decision.

In filing the brief, Attorney General Herring joined attorneys general from Alabama, Arizona, Arkansas, Connecticut, Delaware, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Montana, Nebraska, New Hampshire, New Mexico, New York, North Carolina, Ohio, Oregon, Pennsylvania, South Carolina, South Dakota, Texas, Utah, Vermont, and Wyoming, and the Commonwealth of Puerto Rico.