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DOJ Seeks Legislative Circumvention of 2nd Circuit’s Microsoft Ruling

Late last week, Assistant Attorney General Peter Kadzik sent a letter to Vice President Biden (in his role as presiding officer of the U.S. Senate) asking Congress to amend the Electronic Communications Privacy Act (ECPA) to permit government warrants to reach data stored overseas. This letter was written in response to the Second Circuit’s ruling earlier this month in Microsoft v. U.S., in which the Second Circuit ruled that ECPA’s data seizure provisions did not apply extraterritorially and in which Judge Lynch, in concurrence, called for congressional intervention.  For more information about the Microsoft ruling, please see the Crowell & Moring “Data Law Insights” blog post detailing the court’s decision.

ECPA reform, General Kadzik’s letter argued, will resolve cross-border data access issues for both domestic and foreign governments investigating criminal activity, including terrorism. The proposal seeks to change U.S. law to “authorize law enforcement to obtain electronic data located abroad.” Admonishing the Second Circuit’s decision, General Kadzik noted the “significant public safety implications of the Microsoft decision.”


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