BERKELEY TECHNOLOGY LAW JOURNAL

• Prepared by the U.S. Internet Service Provider Association
• 42 pages
• © 2003 U.S. Internet Service Provider Association

1 INTRODUCTION

Internet service providers (“ISPs”) are increasingly being asked to
provide assistance to government agencies in both criminal and national
security investigations. The types of assistance being requested can take
many forms, including:

• a request for non-content records (for example, billing records or
transactional records);
• a request to preserve certain records or information;
• a request to implement a pen register or trap and trace surveillance;
• a request for stored electronic communications (for example, email
messages); or
• a request to wiretap a subscriber’s communications.

Requests for assistance by the government are governed by a series of
federal surveillance laws. Assistance in criminal investigations is governed
by Title III of the Omnibus Crime Control and Safe Streets Act of
1968—better known as “Title III”—and the Electronic Communications
Privacy Act of 1986—known as “ECPA.” Assistance in national security
investigations is governed by the Foreign Intelligence Surveillance Act of
1978—better known as “FISA.”

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11 INTERNATIONAL JURISDICTIONAL ISSUES

The global nature of the Internet and many ISPs’ networks frequently
raises international jurisdictional issues with respect to ECPA. For example,
a multinational ISP might be presented with a non-U.S. judicial order
for the interception and/or disclosure of electronic communications stored
or transmitted within the United States. The ISP would be at risk of violating
ECPA, however, if it complied with the non-U.S. order by intercepting
or disclosing electronic communications stored or transmitted within the
United States, absent an applicable exception to ECPA. Therefore, in
order to access such communications, in most cases, the foreign government
would have to obtain the appropriate (ECPA-compliant) U.S. legal order through
the United States government. Foreign governments have
been known to object to such time-consuming processes, and claim that an
ISP subject to its jurisdiction must comply with its order without obtaining
process through the United States government. ISP staff should coordinate
closely with legal counsel in such situations.

The USA PATRIOT Act made two changes to ECPA that are particularly
notable in the international context. First, ECPA altered the statutory
provisions for search warrants, “section 2703(d)” orders, and pen register
and trap and trace orders such that jurisdiction for issuing these orders
vests in a court having jurisdiction over the underlying offense. When
dealing with international requests for assistance, this change raises a
question as to whether or not federal courts have jurisdiction to grant relief.
Because the offenses being investigated were committed abroad in
circumstances under which a federal district court would not have jurisdiction
over the offense, there is an argument that federal courts do not have
jurisdiction. A counterargument likely to be advanced by the government
is that the court acquires jurisdiction over the offense by virtue of the international
request for assistance. As a practical matter, an ISP will only
be required to act when presented with an order. Having issued the order,
the court will have resolved the issue.

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13 CONTACT INFORMATION

If you would like to get in touch with some of the contributors to this Guide, see the contact information below:

Drew C. Arena
Assistant General Counsel for Legal Compliance
Verizon Communications
1515 North Courthouse Road, Suite 500
Arlington, Virginia 22201-2909
Telephone: 703.351.3007
Fax: 703.351.3667
E-mail: drew.c.arena@verizon.com

Stewart A. Baker
Steptoe & Johnson LLP
1330 Connecticut Avenue, N.W.
Washington, D.C. 20036
Telephone: 202.429.6413
Fax: 202.261.9825
E-mail: sbaker@steptoe.com

Elizabeth Banker
Associate General Counsel
Yahoo! Inc.
701 First Avenue
Sunnyvale, California 94089
Compliance Fax: 408.349.7941

Christopher G. Bubb
Assistant General Counsel
American Online, Inc.
22000 AOL Way
Dulles, Virginia 20166
Fax: 703.265.2305

Kate Dean
Manager
US Internet Service Provider Association
1330 Connecticut Avenue, N.W.
Washington, D.C. 20036
Telephone: 202.862.3816
Fax: 202.261.0604
E-mail: kdean@steptoe.com

Susan Kelley Koeppen
Senior Attorney
Microsoft Corporation
One Microsoft Way
Redmond, Washington 98052
Telephone: 425.705.4788
Fax: 425.936.7329
E-mail: susankoe@microsoft.com

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