Big Tech’s Fight Over Foreign-Stored Data: A Podcast With Morgan Lewis Partner Mark Krotoski

Duration: 20:01

How far should the arm of the law reach when it comes to data stored overseas?

That’s a question that courts continue to struggle with, even after U.S. tech companies scored a landmark win last year in favor of limiting what authorities can obtain when it comes to foreign-stored data.

Prosecutors investigating crimes in their jurisdiction demand access to suspects’ emails and other communications no matter where the data is stored. But companies say complying could put them in conflict with the legal privacy frameworks of other countries. Lately, companies like Google Inc. and Yahoo Inc. have been on the losing side of the battle.

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In this podcast, we talk to Morgan, Lewis & Bockius partner and former Department of Justice criminal attorney Mark Krotoski to understand the controversy around the scope of the 1986 Stored Communications Act. What he sees is a novel, technical issue colliding with an ill-fitting legal framework. “Because of that—and because there’s no established precedent—you’re getting different decisions from different judges,” Krotoski says.

Ahead of a U.S. Senate Judiciary Committee hearing on the scope of the law this week, Krotoski says courts are looking to the legislature to help settle the fight—something Google has also called for. “I think most would agree that if Congress weighed in we’d have more clarity as to the limits and guidelines for the collection of data. But until then, we’ve got this old statute that has to be applied in this new, evolving area.”