Government authorities across the world have been turning their attention to accessing electronic communications as operational intelligence or evidence in criminal or national security investigations. The most recent aspect of this in Australia is to tackle the issue of encryption. With some of the biggest players based in the US, authorities there have greater potential to access far more data than other jurisdictions, which can then be shared under bi or multi party arrangements with other countries, including Australia.

The US Stored Communications Act is a law that addresses voluntary and compelled disclosure of stored wire and electronic communications and transactional records held by third party internet service providers. Section 2703 of the Act permits a governmental entity to obtain a warrant for the disclosure of the contents of a wire or electronic communication.

Google has been resisting warrants sought in US courts for data stored in overseas data centres. It has now decided to stop challenging most of these warrant requests. These warrants would operate without the assistance or consent of the overseas jurisdiction. US authorities argue that this is not required if the company can access the data from within the United States.

The circumstances show the inconsistency in the US regarding the application of the Stored Communications Act, as Microsoft has fared better in resisting warrants before the 2nd US Circuit Court of Appeals.

What implications does this have for the electronic communications of users in Australia of popular services offered by global players such as Google? Is this any different to what is already happening in Australia with government agencies able to access certain records?