A stricter regime for profiling07 June 2016
Hogan Lovells Publishes White Paper Analyzing Service Provider Transparency Reports: Law Enforcement Requests for Data in the U.S. Not Extraordinary When Compared with Rest of World
Using the most recent transparency reports published by Google, Microsoft, Skype, Twitter, and LinkedIn, the White Paper examines the data concerning law enforcement requests for data in multiple countries. The White Paper concludes that when such data are adjusted for population sizes and the number of Internet users in each respective country, they reveal that the U.S. government requests information from these providers at a rate comparable to—and sometimes lower than—that of several other countries, including many European Union member states.
When the per-capita and per-Internet-user data requests for Google, Microsoft, Skype, Twitter, and LinkedIn were combined for 2012—the only common year for which each of those providers released data—eliminating any countries for which data do not exist across companies, the White Paper shows that the U.S. government requests totaled approximately 96 per capita and 119 per Internet user in 2012, compared to values over twice as high for Taiwan, the United Kingdom, and Hong Kong, and greater values for France, Australia, and Germany.
The White Paper notes that in 2012 it was reported that the rate at which European governments seek access to private data is at an “all-time high,” having increased more than the rate of U.S. government requests during the same period.
Thus, as the national security access debate continues, the issue of whether the U.S. is an outlier when it comes to law enforcement access to data held by others can be resolved. In that regard, U.S. requests to service providers are not fundamentally different in quantity than requests by law enforcement authorities in other countries.
The White Paper expressly does not compare governments' national security requests for data from third-party service providers given the general unavailability of specific numbers of such requests per country, and does not comment on the debate over the methods used by law enforcement to access such data, but notes the growing consensus for amendment of the Electronic Communications Privacy Act (ECPA) to expand the warrant requirement in the U.S. Our May 2013 White Paper, A Sober Look at National Security Access to Data in the Cloud, did compare national frameworks for judicial review and oversight of national security access to data, finding that many of the due process and privacy protections available in the U.S. are not employed elsewhere, and our 2012 White Paper, A Global Reality: Governmental Access to Data in the Cloud, addressed the methods used in each country to access data from service providers.
The White Paper is available here.
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