information
management
six Things to Know About
the USA Patriot Act
Important Information for Iron Mountain Canada Customers
While some Canadians are concerned
about storing their information with
Iron Mountain Canada because of the
Uniting and Strengthening America by
Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism Act of
2001 (the USA Patriot Act), there is
actually little risk that data maintained
with Iron Mountain Canada will be
accessed by the US government
through the USA Patriot Act.
1. US government access to information in
foreign countries (whether held by U.S.
or foreign entities) is not new.
the US government ability to access information for
2. The FBI must prepare a detailed
application showing the information it
wants pertains to an active investigation
— and this application must be validated
by a federal court.
foreign intelligence or international terrorism
To obtain a subpoena, the FBI must prepare a detailed
investigations, simply amended provisions in place since
application identifying the person or entity about which
1978 in the Foreign Intelligence Surveillance Act (FISA).
the information is sought. This application must then be
The difference? FISA expanded the types of information
approved by the US Department of Justice and
or items that could be sought, allowing the FBI to obtain
submitted to a special federal court known as the Federal
court orders concerning such tangible things as books,
Surveillance Court of Review or “FISA Court.”
The USA Patriot Act subpoena provisions, which afford
records, papers and documents to retrieve foreign
intelligence information or to protect against
international terrorism.
An FBI application to the FISA court can only be
submitted to support an authorized investigation to
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secure foreign intelligence information or to protect
concerning a specific individual or entity — even if the
against international terrorism. And, the application must
subpoena identified the Iron Mountain Canada customer for
demonstrate “reasonable grounds to believe” that the
which the information is stored. Because of the specificity
requested items are relevant to that authorized
required by the subpoena process, Iron Mountain Canada
investigation. The FBI must also allege the requested items
would not be asked by the FBI to produce records or
“pertain” to:
metadata on a particular customer (or that customer’s
customers/clients) unless the FBI was first able to:
—— Foreign powers
—— Agents of foreign powers
—— Activities of suspected agents of foreign powers
—— Individuals in contact with, or known to, agents or
suspected agents of foreign powers
3. The FBI would need a basis for alleging
the information it seeks is stored by Iron
Mountain Canada.
The FBI would generally not know if a customer of Iron
Mountain Canada was storing information regarding a
particular individual or entity unless it first obtained
related data from another source. Without that
information, it would be difficult for the FBI to justify a
request for a subpoena regarding specific investigation
targets.
4. Iron Mountain has limited ability to
isolate information on specific individuals
or entities, restricting its ability to
respond to subpoenas directed toward
individuals or entities (other than those
that are named customers).
Iron Mountain Canada does not usually have information
regarding the specific individuals or entities whose records
are in storage. Iron Mountain Canada knows the names of
its customers, but likely has only limited indexing
information relating to the content of paper records (if
provided by the customer), and it generally has no
knowledge about the content of information on tapes or
other electronically stored information in its custody.
As such, Iron Mountain Canada would have only a limited
ability to respond to a subpoena seeking records
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—— Determine Iron Mountain was holding data for the target
person/entity
—— Specify the information that it wanted to obtain
5. Iron Mountain Canada’s status as a
subsidiary of a US company is not the sole
determinant of whether the US government
has subpoena power over stored
information of Canadian citizens or
entities.
The fact that Iron Mountain Canada is a subsidiary of a US
company is not the only risk factor involved in determining
whether records it stores will be subject to a FISA Court
subpoena. Indeed, the factors that determine whether a
particular entity is subject to any US court order revolve
around the issue of whether the entity in question has
sufficient “ties” to the United States to give US federal
courts jurisdiction.
A foreign-owned company with its headquarters and all
facilities outside the US would probably not be subject to a
US court order. However, it probably would be subject to
jurisdiction of US courts if ties could be sufficiently
determined. Ties can be if established in various ways,
including the following:
—— A foreign-based entity has offices or plants located in
the US
—— People who control a foreign entity (officers and/or
directors) have relationships in the United States
—— A foreign entity engages in substantial commerce in the
US by selling into the US
Specific Service Name (Optional)
Testimonial,
pull quote,
information
graphic or fact
can go here.
“It is unlikely that a Canadian entity
with no offices or business in the US
(and no officers or directors who are
US citizens) would be subject to a FISA
Court order.”
6. Canadian government entities are immune
to the jurisdiction of US courts under the
US Sovereign Immunities Act.
Finally, and perhaps most importantly for Canadian
government entities, under the US Sovereign Immunities
Act, foreign states, such as Canada, and their
instrumentalities are immune to the jurisdiction of US
courts. There are certain limited exceptions to this
protection, such as situations where immunity has been
Garry B. Watzke
expressly waived or involving purely commercial activity of
Senior Vice President, Legal and
the foreign state. But apart from that, it is unlikely that
Business Development, Iron Mountain
materials owned by the Government of Canada or its
Incorporated
agencies would be sought — or obtained — through a FISA
court subpoena or any other court order.
learn more
For more information on this and other laws and
regulations impacting North American commerce
and records management, contact your salesperson.
Your salesperson can also provide you with a new white
paper about the Patriot Act and FISA, titled The USA
Patriot Act: Influence and Effects on Customers of Iron
Mountain Canada.
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About Iron Mountain. Iron Mountain Incorporated (NYSE: IRM) provides information
management services that help organizations lower the costs, risks and inefficiencies of managing
their physical and digital data. Founded in 1951, Iron Mountain manages billions of information
assets, including backup and archival data, electronic records, document imaging, business records,
secure shredding and more, for organizations around the world. Visit the company Web site at
www.ironmountain.com for more information.
© 2011 Iron Mountain Canada Corporation. All rights reserved. Iron Mountain, the design of the mountain and 1 800 FASTFILE are trademarks or registered trademarks of Iron Mountain
Incorporated in the U.S. and other countries and are licensed for use by Iron Mountain Canada Corporation. All other trademarks or registered trademarks are the property of their
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