Not a lawyer, but let’s say the cops were searching my house. If I threw the keys to my unbreakable safe out the window, such that they could never be found, I doubt a judge would care for the distinction. That the evidence exists but cannot be accessed is still going to find you in contempt.
Now let's say that instead you threw the keys to your unbreakable safe to your friend across the Atlantic Ocean. And you say that you didn't know that the people entering were cops. And your friend won't give the keys back. The evidence may exist, you cannot access it, neither can the police. The court has no jurisdiction over your friend and you have no authority to force your friend to give you the keys back.
At that point, whether you are in contempt or not depends on the answer to the question "did you know that the cops were entering to look for evidence before you threw the keys?" Whether the judge holds you in contempt or not is a function of the free choice of the judge and is not related to the answer to the first question (though whether or not the judge should hold you in contempt is a function of what the judge believes about what you believed).
If it were keys to a safe that existed outside of the warrant requirements (in another country in fact), then it would likely not be illegal. The regulators would unlikely be able to legally access that safe anyways without extra due process, so it’s mostly about protecting against unwarranted access.
The keys still exist and are accessible. What the kill switches does is make a fishing expedition harder. If the police knew of the existence of a specific document, or even all documents pertaining to certain terms, they could issue a targeted subpoena which Uber would have to comply with (at least in the US).
That metaphor doesn't seem directly applicable to cutting off cloud access.
If we're trying for a metaphor that would be a similar situation pre-digitization, the cloud servers containing business documents could be considered head office, and the office being raided would be the branch office. The branch office would continually be communicating with head office for their operations, and that communication would be shut down during the raid.
This isn't a great metaphor because the "head office" has become sort of stateless and ephemeral with digitization, but that's part of the interesting question the OP was posing, how does law enforcement collect evidence when that evidence is hosted on cloud servers in nebulous datacenters?
By creating a law for seizing the IT system of a company. “Provide everything”, and if we later find that any other document existed back at that time, then it’s contempt of court.
In the US such a law would likely be declared unconstitutional by the fifth amendment due to being overly broad:
“””
United States v. Bridges, 344 F.3d 1010 (9th Cir. 2003)
There was probable cause to search the defendant’s office based on the information in the application that documented his efforts to provide illegal tax advice to various clients, including undercover agents. The search warrant in this case, however, was overly broad. It listed, among the items to be seized, “All records . . . documents . . . computer hardware and software . . .” Though this list was detailed, it was too expansive. There was simply no boundary to what could be seized. In addition, the warrant did not specify the crimes that were the subject of the search (nor did the warrant incorporate the application) so there was no limitation in that manner. Though the application was detailed, the warrant was not. All evidence should have been suppressed. (No discussion of Leon).
As long as no police has confiscated (in most countries this involves the police man touching it, I bet) the equipment you can break it or make it inaccessibility however you like. It's your stuff, after all.
>Not a lawyer, but let’s say the cops were searching my house. If I threw the keys to my unbreakable safe out the window, such that they could never be found, I doubt a judge would care for the distinction.
What if the safe was never in your house at all, but it was in a foreign country across an ocean? And when the cops showed up, you simply threw the keys across the ocean too?
If the cops know of something particular in the safe, then maybe the judge could find you in contempt for not producing that thing when ordered by the court, but otherwise, I don't see how they have any legal leg to stand on.
Your password is sort of protected. A judge can hold you in prison for contempt for refusing to provide a password but there is an 18 month jail limit, at least in federal court.[0]
This theorycrafting is cute, but in reality you've mixed up corporate entities and yourself as a person in a criminal case.
And if a corporate entity finds a way to openly defy a national government, it tends to happen that those governments find a way to change the law (they're the ones making it, right? :P) for that defiance to become punishable by other parts of those governments which can sanction the corporation, prevent their operations within the country or even throw people in jail.
One is, what does the law say? Did they violate it? Is it illegal for a foreign subsidiary to temporarily shut off access to a branch office? How would we like this to work? Policy arguments about law enforcement vs. due process and government overreach.
The other is, politics. If the local government is captured by a cartel of taxi medallion holders who don't like Uber, the government is going to find a way to screw Uber, regardless of whether Uber is complying with existing law. But then it's politics and Uber is a multi-billion dollar corporation, so they have the option to capture the government themselves.
Of course, that leaves the meta argument. Maybe deciding what should happen based on the second method is worse than the first, so how do we prevent that from being what happens?
No, what I'm saying is that governments aren't compilers you mess around with at will when you're as big as Netflix. The fact that something might be illegal is a changeable state by that very government if they decide a corporation has been jerking them around too much. Something being legal right now is a temporary state.
Did you miss all the screaming of US corporations in relation to EU Acts like DMA? Those changes are exactly what happens when you start to think that law and people behind it are separate.
