Where does the U.S. Department of Justice (DOJ) turn when it needs business enterprise data stored on the cloud for a criminal investigation? According to a recent DOJ memo, the default rule is now turn to the business enterprise first and the cloud only if necessary: “prosecutors should seek data directly from the enterprise, if practical, and if doing so will not compromise the investigation.”

The DOJ addressed the issues that arise when enterprises (“companies, academic institutions, non-profit organizations, [and] government organizations”), pay cloud providers to store data. Before the cloud, prosecutors would have to obtain the data from the enterprise’s own servers. Now with outsourced cloud storage, prosecutors could technically side-step the enterprise and obtain that data from the cloud providers. However, the DOJ recognizes in this memo that “[c]ompelling the cloud provider to produce the data when the enterprise is not the potential target [of the investigation,] comes with potential downsides” including “lengthier time” for collection and concerns that cloud providers may not have the “appropriate tools to preserve or disclose data” on targeted issues. Collecting directly from the cloud risks “over-collection,” while working with the enterprise itself gives “counsel the opportunity to interpose privilege and other objections.”

Cloud providers are still likely to be part of investigators’ data collection efforts. If there is a risk that the enterprise might destroy data, the memo instructs prosecutors to consider demanding that the cloud providers make a preservation copy of the data. See 18 U.S.C. § 2703(f)(1). There are other exceptions to the “enterprise first, cloud second” approach if (1) the enterprise is “essentially devoted to criminal activation,” (2) there is reason to believe the enterprise “will be unwilling to comply,” or (3) disclosure to the enterprise might pose a risk to witnesses. The full DOJ memorandum is available here.