Digital Evidence Gathering by US Authorities and Cross-Border Cooperation with US-Based Service Providers

This chapter provides an account of the governing legal framework with respect to the gathering of digital evidence by U.S. LEAs and the rules that bind U.S. service providers – an issue that, given the quantity of data of interest in the hands of U.S.-based providers, increasingly matters to law enforcement authorities all around the world. Parts I and II describe the general statutory and constitutional scheme governing data collection in the United States, with a focus on the federal level. Part III examines specific questions with respect to cross-border cooperation, particularly in light of the Clarifying Lawful Overseas Uses of Data (CLOUD) Act that seeks to better facilitate cross-border access to data, in specified circumstances, and in accordance with baseline procedural and substantive protections. Finally, Part IV draws some concluding thoughts about both the need for more attention to cross-border access to data and some of the lacuna in U.S. law.