Officer Kay Oss of the Midgard State Police received a report from a guidance counselor that a fourteen-year-old girl, Stacy, disclosed she was sexually abused by a forty-three-year-old man named John. Stacy told Officer Oss that John physically harmed her and took sexually explicit photos of her with his cell phone. Officer Oss is investigating John for various offenses he committed against Stacy. To support her investigation, Officer Oss wishes to obtain information from the cloud-based storage provider used by John, but she is uncertain whether she may obtain this information with a Midgard search warrant, as the servers used by the provider are located in Virginia.
Digital evidence exists in almost every criminal case and provides unparalleled corroborative utility, particularly for crimes often committed in secret, such as child exploitation. This evidence is increasingly stored remotely on servers across state lines, around the globe, and beyond. It is therefore critical for prosecutors and law enforcement to develop an understanding of the pertinent domestic and international legal considerations for obtaining remotely stored data.
This Article provides an overview of the Stored Communications Act (SCA), the trajectory of Fourth Amendment jurisprudence since the SCA’s passage, relevant provisions of the Clarifying Lawful Overseas Use of Data (CLOUD) Act, and bilateral agreements following the enactment of the CLOUD Act. This Article uses real-life scenarios that prosecutors and law enforcement face to explore the potential pitfalls of accessing remotely stored data and proposes possible solutions to those problems. Examples include practices for obtaining domestically stored data, obtaining internationally stored data via the CLOUD Act agreement or mutual legal assistance treaty (MLAT), obtaining internationally stored data in the absence of the CLOUD Act agreements or MLATs, and obtaining data stored in extraterrestrial locations.