Division Letter from Deputy Assistant Attorney General and Counselor for International Affairs Bruce Swartz, U.S. Department of JusticeF1

February 19, 2016

Dear Mr Antonipillai and Mr Dean:

This letter provides a brief overview of the primary investigative tools used to obtain commercial data and other record information from corporations in the United States for criminal law enforcement or public interest (civil and regulatory) purposes, including the access limitations set forth in those authorities. These legal processes are nondiscriminatory in that they are used to obtain information from corporations in the United States, including from companies that will self-certify through the US/EU Privacy Shield framework, without regard to the nationality of the data subject. Further, corporations that receive legal process in the United States may challenge it in court as discussed below.

Of particular note with respect to the seizure of data by public authorities is the Fourth Amendment to the United States Constitution, which provides that ‘[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.’ U.S. Const. amend. IV. As the United States Supreme Court stated in Berger v. State of New York, ‘[t]he basic purpose of this Amendment, as recognized in countless decisions of this Court, is to safeguard the privacy and security of individuals against arbitrary invasions by government officials.’ 388 U.S. 41, 53 (1967) (citing Camara v. Mun. Court of San Francisco, 387 U.S. 523, 528 (1967)). In domestic criminal investigations, the Fourth Amendment generally requires law enforcement officers to obtain a court-issued warrant before conducting a search. See Katz v. United States, 389 U.S. 347, 357 (1967). When the warrant requirement does not apply, government activity is subject to a ‘reasonableness’ test under the Fourth Amendment. The Constitution itself, therefore, ensures that the U.S. government does not have limitless, or arbitrary, power to seize private information.

Sincerely,

Bruce C. Swartz

Deputy Assistant Attorney General and Counselor for International Affairs