Access Denied? The International Criminal Court, Transnational Discovery, and The American Servicemembers Protection Act

This paper addresses how international criminal tribunals can obtain content and non-content data held in electronic storage by private companies incorporated in the United States for use as evidence. We primarily focus on the International Criminal Court (ICC) for two reasons: first, the ICC faces hurdles above and beyond those of other international criminal tribunals-including barriers created by the 2002 passage of the American Servicemembers' Protection Act (ASPA)- and thus represents the most restrictive case; second, as the world's first permanent international criminal court, it is crucial to analyze how the court is functioning and establish a legal infrastructure to facilitate the ICC's long-term operation. We conclude that, with regard to the ICC, and contrary to conventional understanding and practice, ASPA is not a barrier to the ICC's investigations in the United States so long as the ICC limits any requests for assistance to investigations of crimes against humanity, war crimes, and genocide allegedly perpetrated by foreign nationals. Second, we conclude that tribunals such as the ICC have five options for securing privately-held electronic information: (1) submitting requests directly to tech companies; (2) filing requests for assistance in U.S. district courts; (3) requesting assistance from the executive branch; (4) asking foreign governments to submit Mutual Legal Assistance (MLA) requests on the ICC's behalf; and (5) partnering with joint law enforcement bodies, like INTERPOL, to make foreign-to-domestic law enforcement requests.