follow However, in SEC v. Scoville , No.
Section 10 b is used to challenge material misstatements and omissions made in connection with the purchase or sale of securities. But the presumption against extraterritorial application would be a craven watchdog indeed if it retreated to its kennel whenever some domestic activity is involved in the case.
The district courts of the United States and the United States courts of any Territory shall have jurisdiction of an action or proceeding brought or instituted by the Commission or the United States alleging a violation of section 77q a of this title [Section 17 a of the Securities Act] involving—.
Scoville involved sales of revenue interests called AdPacks in a business called Traffic Monsoon that would ostensibly boost web traffic in order to rank websites higher on search engine results, but which allegedly operated as a Ponzi scheme. Even though some sales of, and offers to sell, the AdPacks were made to persons outside the United States, the defendant conceived and created Traffic Monsoon in the United States, he created and promoted the Adpack instruments over the internet while residing in Utah, and the servers housing the Traffic Monsoon website were physically located in the United States.
As Judge Briscoe noted in her concurring opinion, the court could just as easily have decided that this case involved the offer and sale of securities in the United States without addressing extraterritoriality issues. In the meantime, Morrison will continue to apply to private securities fraud actions.
It explains the two parts of the act, dealing with: i U. As the article highlights, the CLOUD Act offers a model for both responding to law enforcement needs and setting — and raising — baseline privacy protections. In that regard, it is a step in the right direction, although there is much more work to be done. The Act has generated controversy both within and outside the United States. That said, there remain key, unresolved issues that need to be worked out, both by U. It is true that the legislation was tacked onto an omnibus spending bill at the 11th hour.
This book examines the application of UK Criminal and Human Rights Law to people and circumstances outside the United Kingdom. Building upon previous. Download Citation on ResearchGate | Law across borders: The extraterritorial application of United Kingdom Law | This book examines the application of UK.
But it was not the surprise that some have suggested. On the contrary, key elements had been the subject of hearings in both the House and Senate judiciary committees and in multiple other open, informal congressional briefings. Tech companies, law enforcement officials, academic experts, and members of civil society were involved in a multi-year discussion of the issues; many representatives actively lobbied members of Congress both for and against key provisions.
Specifically, the Act authorizes the executive branch of the United States to enter into agreements with foreign governments, pursuant to which foreign governments can gain expedited access to U. In so doing, it sets out the minimal requirements that each and every agreement must meet. The envisioned agreements also impose a number of use-based limitations, mandating, for example, the secure storage of any disclosed data, deletion or segregation of non-relevant information, and limits on when the data can be shared. They also require that foreign partners agree to periodic reviews to ensure that the requirements are met.
In many areas, even these minimal requirements are more robust than what would be required if governments were able to compel the production of sought-after communications content pursuant to their existing domestic rules; this provides an incentive for governments to raise standards to meet the minimal requirements — an incentive that will ultimately enhance privacy protections above and beyond the status quo.
In addition, the first part of the Act, which clarifies the reach of US law enforcement over extraterritorially held data, is neither the kind of sea change nor the enforcement grab that some have suggested. As of , Google did not have a mechanism in place to ascertain where all of its data was located at any given point in time. As with all legislation, the CLOUD Act was the product of negotiated compromise; it is, as a result, inherently imperfect. Among other flaws, it does not contemplate the possibility of multilateral agreements, thereby leaving unresolved key questions about the possibility and contours of a potential US-EU agreement; 10 adopts a new conflict-of-law provision yet only applies it in very limited circumstances; fails to tackle the critically important issue of user notice; and neglects to provide explicit protection for companies that seek to provide transparency over foreign government requests for data, But it also reflects a much-needed attempt to respond to the changing needs of law enforcement, establish new mechanisms to address these needs, and lay out minimal substantive and procedural standards to govern law enforcement in the process.
In so doing, it responds to three emerging realities:.
The increased internationalization of investigations, with either the data of interest or the provider that controls that data located across an international border. The first section of this article seeks to move past the rhetoric and demystify the CLOUD Act by explaining and analysing its two key parts. The second section highlights some of the key issues left to be resolved. Part I clarifies the reach of US law enforcement to access data held extraterritorially by US-based providers.
Part II authorizes the executive to enter into agreements with foreign governments, pursuant to which foreign governments can bypass the otherwise applicable mutual legal assistance requirements in specified circumstances and according to baseline substantive and procedural requirements. The next two subsections provide details on each of these two parts. The case dates back to December , when Microsoft was served with a warrant for emails, pursuant to the Stored Communications Act SCA , as part of a drug-related criminal investigation.
The sought-after emails were stored in Dublin, Ireland, and Microsoft refused to comply with the warrant as a result. According to Microsoft, warrants issued pursuant to the SCA are territorially limited and thus only could compel the production of data that was stored within the territorial jurisdiction of the United States.
The U. But it emphasized that Microsoft was a U. According to the U.
In sum, both parties agreed that warrants issued under the SCA are territorially limited. But they strongly disagreed as to whether or a warrant issued on a U. S-located company for data located outside the United States was a territorial or extraterritorial exercise of the warrant authority. At the oral argument, several justices suggested that this was an issue better dealt with by Congress than the courts. To date, there are zero such qualifying governments although that is likely to change over time as will be described below.
Courts would then be in a position of weighing the relevant equities in deciding whether to continue to compel disclosure of the sought-after data. As far as is known, no such claims of conflict in response to the issuance of U.
In its amicus brief to the Supreme Court, Ireland emphasized that it was willing and ready to respond to a mutual legal assistance request for the sought-after data. But it never actually asserted that Microsoft would violate Irish law if it were compelled to disclose the data.
The same statute at issue in Microsoft Ireland , namely the SCA, blocks US-based providers from disclosing communications content to foreign law enforcement. Instead, foreign law enforcement authorities are required to make a government-to-government mutual legal assistance request for such data, even if they are seeking the data of one of their own citizens or residents in connection with a local crime. This is a time-consuming process involving a Department of Justice review of the request, a U.
Congress about the ways in which the provisions blocking direct disclosures to foreign law enforcement were hampering the U. To address these concerns, Congress authorized the executive branch to enter into agreements with foreign governments, pursuant to which the partner government could directly request communications content from U. The agreements also include a number of requirements as to use of collected data. Notably, the agreements also only permit foreign government direct access to the data of non-U.
Thus, even with an executive agreement in place, partner governments cannot directly compel the production of a U. But if they want access to U. Despite the warnings that Part I would lead to widespread conflicts of law, no such claims have yet been raised, although some may emerge in the near future. Either a U. These initial agreements are likely to become a model for those that follow.
Importantly, and as noted in the Introduction of this article, the statutorily specified requirements for executive agreements merely set a floor not a ceiling.
Constitutional Sunsets and Experimental Legislation. Close Report a review At Kobo, we try to ensure that published reviews do not contain rude or profane language, spoilers, or any of our reviewer's personal information. In addition, the Rome Statute of the International Criminal Court has been incorporated into domestic law in many countries to provide for the International Criminal Court to exercise jurisdiction within their borders. Academic Freedom and the Law. The appeal has been brought because the US government wants to rely upon US domestic search warrant legislation to access the data, rather than making a mutual assistance request to the Irish government. Public policy on the obligations of States towards human rights outside their territories has a legal dimension in international human rights law. We acknowledge and pay our respects to the Traditional Owners owners of the land on which we work and live.
Additional protections can, and in some cases should, be added to any agreements that are ultimately adopted. Among the key additional provisions to be included: An agreed-upon mechanism for providers to initiate a U. Protections for providers that produce transparency reports with details about foreign government requests for data;.