Last year, the European Court of Justice barred major companies from moving Europeans' personal information outside the European Union. However, information obtained from investigations may present a loophole.
The Wall Street Journal reported that investigators in international probes can pass around information informally in ways that are barely regulated and this practice is likely to grow as countries other than the US pursue bribery and fraud cases.
White & Case partner Kathleen Hamann said that this informal access to data may appeal to European law enforcement, given the easier access to personal data in the US. "The divide between the way that Europe views data protection and the way the US views data protection is getting wider and that is more likely to incentivize these kinds of processes of 'well the US has it we can use it'," she said.
Hamann, a former attorney in the US Justice Department's fraud section, said that by the time the information gathered from another country reaches the courtroom it can be difficult to determine its provenance, and companies should be prepared for such cross-border sharing before it happens.
"When you are in those initial stages [of an internal investigation]…you may have to be very thoughtful of how to protect the various types of information in various jurisdictions," she said.
Hamann cites the Innospec Ltd. foreign corruption case as a prime example of overlapping jurisdictions that lead to unusual exchanges of information.
"Other times a possible run-around on rights can occur under the public eye," Ms. Hamann said. She cites the example of the foreign bribery case of UK-based Victor Dahdaleh, where US attorneys were summoned to testify against their corporate clients.
Hamann pointed out that a defense attorney often can't aggressively advocate for personal rights because of other interests at stake, and a better advocate might need to be found. "I think the first step is to shine some light on it and start thinking about it and talking about it," she said about the information sharing.