Tag Archive | "discovery"

Internet graphic

Critical Analysis: Determining the Boundaries of the Internet

Cloud Computing and Internet Surveillance

Since the rise of the internet, lawmakers and courts have struggled to create legal rules for a computer network that disregards geographical boundaries. Issues concerning internet governance have only grown more complex with the recent trend towards cloud computing and revelations of internet surveillance by government agencies. U.S. companies host massive amounts of data from customers around the world, with much of that information being stored overseas. These same U.S. companies have come under fire for giving U.S. government agencies access to customer data. Many countries responded to these revelations by enacting legislation designed to protect the privacy of their citizens’ data. Now we are left with a segmented, country-by-country approach, to govern an internet that has no borders. The lack of a unified international framework for data protection has made it impossible for global internet companies to comply with all of the contradicting demands of their various stakeholders.

global network graphic

Image Source: wonderfulengineering.com

Microsoft Refuses to Give Foreign Hosted Data to U.S. Authorities

A court decision determining the circumstances under which U.S. law enforcement agencies may obtain digital information stored outside the U.S. has become the most recent example of the difficulty in reconciling the notion of sovereignty with a globally distributed network. During the summer of 2014, a United States court ordered Microsoft to produce the content of email-data stored on servers in Dublin, Ireland. Microsoft complied with the warrant to the extent of producing the metadata of the email stored on U.S. servers but has refused to turn over the foreign hosted content. Microsoft claims that U.S. courts do not have the power to issue warrants for extraterritorial search and seizure. In the courts view, extraterritoriality does not apply to warrants issued pursuant to the Stored Communications Act (SCA) because the information is within the control of Microsoft.

Stored Communications Act (SCA)

Part of the purpose of the SCA was to address the difficulty in applying Fourth Amendment protections to information communicated and stored electronically. The court argues that a section 2703(a) SCA warrant operates like a hybrid between a subpoena and a warrant. With a subpoena the test for compulsory production of information is whether or not the information is in the possession, custody, or control of the subpoena recipient. Extraterritoriality does not apply because, like a subpoena, an SCA warrant does not involve government agents entering the premises of the ISP to search its servers and seize information. One of the problems in allowing the SCA warrant hybrid to defy jurisdictional boundaries is that it creates a situation where Microsoft cannot comply with both the order and the laws of the host country simultaneously.

The Business of International Internet Companies

Microsoft, with the support of several other tech giants (including AT&T, Apple, Cisco, and Verizon among others), is claiming that this court order could set a precedent that might encourage Europeans to avoid using Microsoft products out of a fear that expansive U.S. discovery rules could expose all of their information. To maintain its European customers and avoid possible liability abroad, Microsoft has a very strong incentive to push back against this order. Microsoft has argued that if it complied with this order, it could decimate the U.S. cloud computing industry – which would cost both jobs and massive tax revenue. To protect its growing business in countries outside the U.S. Microsoft is urging the U.S. government to abide with its mutual legal assistance treaties, or MLATs. This approach would allow for more cooperation between the requesting and host countries, ensuring that the local laws of the host country are not disregarded in the process of acquiring the requested information.

Internet graphic

Image Source: techpolicydaily.com

The Cloud Computing Industry Fights Back

While this case has played out in the court systems members of the United States Congress have been working to find an appropriate solution to the issues presented by U.S. based companies hosting data abroad. On September 18, 2014 a bipartisan group of senators introduced the Law Enforcement Access to Data Stored Abroad Act, or LEADS Act. The LEADS Act would implement the warrant-for-content rule, meaning that the account of a U.S. citizen held overseas would only be accessible to law enforcement with a judicial warrant. The goal of the bill is to balance the needs of U.S. law enforcement with consumer privacy rights. Microsoft is supportive of the new bill as a way to continue the conversation over the control of data, but was adamant that it would not be the conversation’s conclusion.

Matthew Aeschbacher is a 4LE law student at the University of Denver Sturm College of Law and a staff editor for the Denver Journal of International Law & Policy.


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Critical Analysis: The Fifth Accused – Another One in Hiding?

Just when we thought it couldn’t get any more suspenseful – or complicated – the Prosecutor at the Special Tribunal for Lebanon indicts yet another suspect in the court’s current case, Prosecutor v. Ayyash et al.

For those unfamiliar with the Lebanon Tribunal, it is an ad hoc court located on the outskirts of The Hague in the Netherlands. It was established by the UN Security Council under Chapter VII (Articles 39 and 41 specifically) of the UN Charter. Its primary mandate is to hold trials for the people accused of carrying out the attack of February 14, 2005, which killed 23 people, including the former prime minister of Lebanon, Rafiq Hariri, and injured many others.

The Prosecution’s case essentially rests on a very intricate network of cell phone activity prior to and on the day Hariri was killed. Specifically, five mobile phone networks – called the Red, Green, Blue, Yellow and Purple Networks – were allegedly managed by different members of a criminal enterprise who played different roles in the planning and execution of the 2005 bombing. Previously, Salim Jamil Ayyash, Mustafa Amine Badreddine, Hussein Hassan Oneissi, and Assad Hassan Sabra were named as members associated with these networks. Specifically, the Prosecutor argues that Ayyash, who allegedly used phones in the Red, Green, Blue and Yellow Networks, was a key coordinator who oversaw the plot. Two other members of the Red Network were part of the Blue and Yellow Networks, suggesting they also helped coordinate the different networks. Mustafa Badreddine, who faces the same charges as Ayyash, was not part of the Red Network but the prosecution argues that he maintained close contact with Ayyash using Green Network phones, helping monitor Hariri as well as help purchase the truck that was eventually used by a suicide bomber.

For even the most experienced trial attorney, all these mobile phones, call data records, and cell towers from a city of more than 350,000 people most of whom use cell phones – probably resulted in one of the most daunting and stressful discovery periods of all time. The trial was postponed in February 2013, and later rescheduled for January 2014 because of the lengthy discovery period.

The Special Tribunal for Lebanon located near the Hauge in the Netherlands.

The Special Tribunal for Lebanon located near The Hauge in the Netherlands.

And just when the lawyers thought it was over, along came Hassan Habib Merhi.

Although scant information is publicly available on the suspect, the Tribunal and Al-Jadeed television have provided biographical information on him. The STL described Merhi—who was born December 12, 1965 in Beirut to Habib Merhi and Latifa Abbas—as a “Hezbollah supporter.” Al-Jadeed television in March (citing STL sources) reported that Merhi does not occupy a leadership position within Hezbollah, adding that he is known among his peers as “Hajj Rabih,” a moniker he received after a pilgrimage he made following the 2006 July War to Mecca, where he was detained by Saudi authorities.

Merhi was, it seems, too busy assisting Salim Ayyash in killing Hariri to have given roses to his beau on that tragic Valentine’s Day in 2005. Specifically, Merhi has been attributed to several of the mobile phone networks, which demonstrate collectively that he worked closely with Ayyash to carry out the attack on Hariri while simultaneously overseeing that both Oneissi and Sabra successfully delivered a tape containing the falsified claim of responsibility to Al-Jazeera shortly after the attack.

This amended indictment will no doubt spark some problematic questions.

1. Does this indictment mean the trial is going to get postponed – again

There is growing international and domestic Lebanese pressure on the Tribunal to begin trial proceedings. After failing to start the trial in March, the Tribunal continues to face mounting criticism as it reschedules the trial for another tentative start in January 2014. The addition of Merhi to the indictment will no doubt add to the work of all organs of the Tribunal – and mostly likely require an extension of the disclosure period.

2. How could the Prosecutor miss such an important suspect? What’s going on with this Hezbollah-linked trail of phone calls?

It is entirely possible that the Prosecutor knew about Merhi from the outset, but he needed further evidence which only recently culminated enough to satisfy an amendment to his indictment. The Merhi indictment, however, will remind many of the political nature of the Tribunal’s work. Merhi, along with the other Accused, is affiliated with Hezbollah. Hassan Nasrallah, head of Hezbollah, has repeatedly insisted that the Tribunal is politically motivated to protect the interests of Israel, who he suggests was behind the Hariri attacks. The Merhi indictment may recharge Nasrallah, as well as other political critics of the Tribunal. Recent and high-profile resignations, including that of the Registrar Herman von Hebel and Trial Chamber Presiding Judge Roth, have already provided fuel for these critics.

3. What difference does Merhi make?

The Merhi indictment, at least legally, creates a more complete case for the Prosecution. Practically, however, it will present further problems.  Any political pushback created by critics due to Merhi’s indictment may result in further resistance from Lebanon to fully cooperate with the Tribunal in finding the Accused. Faced with a dire schism in its government, Lebanon has a history of resistance from pro-Hezbollah government officials who have complicated the state’s cooperation with the Tribunal.

It is highly unlikely that Merhi, along with the other four Accused, will ever be detained and arrested. The trial is likely to proceed in absentia, a setup which received fierce criticism from common law advocates who believe the practice to be a violation of the rights of the Accused.

As the world tunes in to learn more about Merhi, the Tribunal is no doubt scurrying to keep on track for a January opening statement. Only time will tell whether this new addition will push forward the showcase trial which the Lebanese have anticipated since 2005.


Maha is a staff editor with the Journal and a third-year law student, specializing in international criminal law and civil rights. She spent six months in 2013 with the Office of the Prosecutor at the Special Tribunal for Lebanon as a legal intern.


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University of Denver Sturm College of Law