Guide Law Across Borders: The Extraterritorial Application of United Kingdom Law

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Extraterritorial Effects of National Legislation – Transnational Corporations' Risks

Tech companies, law enforcement officials, academic experts, and members of civil society were involved in a multi-year discussion of the issues; many representatives actively lobbied members of Congress both for and against key provisions. Specifically, the Act authorizes the executive branch of the United States to enter into agreements with foreign governments, pursuant to which foreign governments can gain expedited access to U.

In so doing, it sets out the minimal requirements that each and every agreement must meet. The envisioned agreements also impose a number of use-based limitations, mandating, for example, the secure storage of any disclosed data, deletion or segregation of non-relevant information, and limits on when the data can be shared. They also require that foreign partners agree to periodic reviews to ensure that the requirements are met.

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Extraterritorial jurisdiction - Wikipedia

In many areas, even these minimal requirements are more robust than what would be required if governments were able to compel the production of sought-after communications content pursuant to their existing domestic rules; this provides an incentive for governments to raise standards to meet the minimal requirements — an incentive that will ultimately enhance privacy protections above and beyond the status quo. In addition, the first part of the Act, which clarifies the reach of US law enforcement over extraterritorially held data, is neither the kind of sea change nor the enforcement grab that some have suggested.

As of , Google did not have a mechanism in place to ascertain where all of its data was located at any given point in time. As with all legislation, the CLOUD Act was the product of negotiated compromise; it is, as a result, inherently imperfect. Among other flaws, it does not contemplate the possibility of multilateral agreements, thereby leaving unresolved key questions about the possibility and contours of a potential US-EU agreement; 10 adopts a new conflict-of-law provision yet only applies it in very limited circumstances; fails to tackle the critically important issue of user notice; and neglects to provide explicit protection for companies that seek to provide transparency over foreign government requests for data, But it also reflects a much-needed attempt to respond to the changing needs of law enforcement, establish new mechanisms to address these needs, and lay out minimal substantive and procedural standards to govern law enforcement in the process.

In so doing, it responds to three emerging realities:.

US Tenth Circuit holds SEC can apply antifraud provisions extraterritorially in certain situations

The increased internationalization of investigations, with either the data of interest or the provider that controls that data located across an international border. The first section of this article seeks to move past the rhetoric and demystify the CLOUD Act by explaining and analysing its two key parts. The second section highlights some of the key issues left to be resolved. Part I clarifies the reach of US law enforcement to access data held extraterritorially by US-based providers.

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Part II authorizes the executive to enter into agreements with foreign governments, pursuant to which foreign governments can bypass the otherwise applicable mutual legal assistance requirements in specified circumstances and according to baseline substantive and procedural requirements. The next two subsections provide details on each of these two parts. The case dates back to December , when Microsoft was served with a warrant for emails, pursuant to the Stored Communications Act SCA , as part of a drug-related criminal investigation.


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The sought-after emails were stored in Dublin, Ireland, and Microsoft refused to comply with the warrant as a result. According to Microsoft, warrants issued pursuant to the SCA are territorially limited and thus only could compel the production of data that was stored within the territorial jurisdiction of the United States. The U. But it emphasized that Microsoft was a U.


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  5. According to the U. In sum, both parties agreed that warrants issued under the SCA are territorially limited. But they strongly disagreed as to whether or a warrant issued on a U. S-located company for data located outside the United States was a territorial or extraterritorial exercise of the warrant authority. At the oral argument, several justices suggested that this was an issue better dealt with by Congress than the courts.

    To date, there are zero such qualifying governments although that is likely to change over time as will be described below. Courts would then be in a position of weighing the relevant equities in deciding whether to continue to compel disclosure of the sought-after data. As far as is known, no such claims of conflict in response to the issuance of U.

    Law across borders: the extraterritorial application of United Kingdom law

    In its amicus brief to the Supreme Court, Ireland emphasized that it was willing and ready to respond to a mutual legal assistance request for the sought-after data. But it never actually asserted that Microsoft would violate Irish law if it were compelled to disclose the data. The same statute at issue in Microsoft Ireland , namely the SCA, blocks US-based providers from disclosing communications content to foreign law enforcement.

    Instead, foreign law enforcement authorities are required to make a government-to-government mutual legal assistance request for such data, even if they are seeking the data of one of their own citizens or residents in connection with a local crime.

    This is a time-consuming process involving a Department of Justice review of the request, a U. Congress about the ways in which the provisions blocking direct disclosures to foreign law enforcement were hampering the U.

    Law Across Borders

    To address these concerns, Congress authorized the executive branch to enter into agreements with foreign governments, pursuant to which the partner government could directly request communications content from U. The agreements also include a number of requirements as to use of collected data. Mr Edwards submits the Supreme Court should continue to be guided by these longstanding legal principles that allow for cooperation for law enforcement access to information as well as cross-border exchanges of information and ICT more broadly — while ensuring data-holding entities like Microsoft are not saddled with conflicting legal obligations.

    The Privacy Commissioner's written submission has been made under US Supreme Court procedure, which permits third parties - including those outside the US - to make submissions where an appeal will or may affect that third party's interest. The appeal is to be heard by the US Supreme Court in We respect your Do Not Track preference.

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    For more information, contact Charles Mabbett on United Kingdom Both the United States and the United Kingdom have been engaged in wars in Iraq and Afghanistan, where they perpetrated terrible crimes and violated important tenants of international law. These violations, ranging from allegations of torture to wrongful deaths, are prohibited by human rights law.

    The issue of the extraterritorial nature of the treaties is therefore crucially important because the crimes that have been committed by these two nations can only be remedied if the treaties can be interpreted to apply to the territory in question. Al- Skeini held that the ECHR applied to six Iraqi civilians who were killed while under the authority and control of the British military during their occupation in This case is the most recent of court opinions that have affirmed the notion that the object and purpose of a human rights instrument should be taken into heavy consideration when determining the extraterritorial nature of a treaty.

    In determining whether human rights treaties apply extraterritorially, it is necessary to analyze important provisions and terms in a particular agreement.