Cloud Storage and Search Warrants: When Can Cloud Files Be Searched by the Government?
Do you know where your digital files sleep at night? In a pair of recent, hotly debated rulings, the court made an important distinction regarding when files stored in the cloud can be reached via a search warrant, and when the cloud cannot be reached by the US justice system.
The primary distinction lies in how and where a cloud storage service provider maintains the files in the cloud. Basically, if the files are permanently stored in one physical location that is outside the jurisdiction of the US courts, then the files will be safe from a US search warrant. However, if the service provider moves the stored data and files from location to location, then even if the files or data are not presently located in the US, a search warrant may compel the files to be moved onto a server located in the US to be included in the warrant.
Why the Distinction?
The courts' opinions actually explain how the cloud storage systems work, and rely on the specific provider's system to determine if files or data can be brought within the US justice system's jurisdiction. In one opinion, the court found that because the cloud storage system was wholly and 100% located in a foreign country, that a search warrant issued by the US courts could not permit the search of that server. The reason being that US courts do not have authority over foreign territories.
Alternatively though, a cloud storage service provider that had storage servers outside the US court's jurisdiction could be required to provide access to data and files stored abroad, if the cloud storage system utilized did not wholly and 100% store and maintain the files abroad. The case involved Google's cloud storage system, which moved files and data from server to server for efficiency and other technical reasons.
The rationale behind this type of cloud storage system being vulnerable to search warrants is that if files are being moved from location to location, then the users have less of a privacy right, particularly if they have no control over where the files get moved to.
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