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J.A. 46–47. 8 After being served with the Warrant, Microsoft determined that the e‐mail contents stored in the account were located in its Dublin datacenter. Microsoft disclosed all other responsive information, which was kept within the United States, and moved the magistrate judge to quash the Warrant with respect to the user content stored in Dublin. As we have recounted, the magistrate judge denied Microsoft’s motion to quash. In a Memorandum and Order, he concluded that the SCA authorized the District Court to issue a warrant for “information that is stored on servers abroad.” In re Warrant to Search a Certain E‐Mail Account Controlled and Maintained by Microsoft Corporation, 15 F. Supp. 3d 466, 477 (S.D.N.Y. 2014) (“In re Warrant”). He observed that he had found probable cause for the requested search, and that the Warrant was properly served on Microsoft in the United States. He noted that, inasmuch as an SCA warrant is served on a service provider rather than on a law enforcement officer, it “is executed like a subpoena in that it . . . does not involve government agents entering the premises of the ISP [Internet service provider] to search its servers and seize the e‐mail account in question.” Id. at 471. Accordingly, he determined that Congress intended in the Act’s warrant provisions to import obligations similar to those associated with a subpoena to “produce information in its possession, custody, or control regardless of the location of that information.” Id. at 472 (citing Marc Rich, 707 F.2d at 667). While acknowledging that Microsoft’s analysis in favor of quashing the Warrant with respect to foreign‐stored customer content was “not inconsistent with the statutory language,” he saw Microsoft’s position as “undermined by the structure of the SCA, its legislative history,” The Warrant also describes in Attachment C techniques that would be used (presumably by the government, not Microsoft) “to search the seized e‐mails for evidence of the specified crime.” J.A. at 47. 8 11

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Microsoft v. United States

Case Law

Country

United States

Country Location

Latitude: 39.778231903243785

Longitude: -100.8801256788983

Country Location (linked Case Law): United States

Decision Date: Jul 14, 2016

Case Status: On Appeal

Case Outcome (Procedural)

Reversed and Remanded

Case Outcome (Disposition)

Access to Information Denied

Keywords

Data Protection and Retention
Privacy

Case Number: 829 F.3d 197

Case Summary: The U.S. Court of Appeals for the Second Circuit reversed an order of the District Court for the Southern District of New York and declined to enforce a search warrant under the Stored Communications Act (SCA), which required Microsoft Corporation to access data stored in Dublin, Ireland, finding that this would be an unlawful extraterritorial application of the Act. Microsoft refused to comply with a warrant requiring it to produce the contents of an individual’s email account, allegedly used in connection with an investigation into narcotics trafficking, on the basis that the information was stored at datacenters based in Ireland. The Court reasoned that the order was a warrant, not a subpoena, because the private party, Microsoft, in being required to conduct the search and seizure became an agent of the government and the Fourth Amendment’s warrant clause applied to its actions. Further, the Court reasoned that the SCA was not intended to have extraterritorial application and only applied to material located in the U.S. Since the information was located in Dublin and the warrant would require Microsoft to reach out to the Dublin center to obtain it, enforcement of the warrant would constitute an unlawful extraterritorial application of the Act. However the Microsoft decision may be in peril following the Supreme Court's grant of the U.S.' petition for certiorari on October 16, 2017. The grant comes after multiple courts outside the Second Circuit rejected its analysis, concluding that U.S. warrants cover all electronic communications data controlled by U.S.-based service providers. Most notably, in In re Search Warrant No. 16-960-M-01 to Google, a federal magistrate judge in the Eastern District of Pennsylvania took the opposite approach to the court in Microsoft and rejected Google’s position, holding that “[e]ven though the retrieval of the electronic data by Google from its multiple data centers abroad has the potential for an invasion of privacy, the actual infringement of privacy occurs at the time of disclosure in the United States.” The Supreme Court’s decision may have significant implications for the ability of law enforcement agencies to obtain communications data stored outside the United States, and also for companies that must navigate among the competing demands of U.S. law enforcement requests, customer privacy expectations, and foreign laws. In addition, the Supreme Court’s decision to review this issue comes as Congress considers legislation to expand the scope of U.S. warrants to cover data stored outside the United States.

Case Significance: The decision establishes a binding or persuasive precedent within its jurisdiction.

Source URL: Columbia Global Freedom of Expression

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Microsoft v US.pdf
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CYRILLA: Global Digital Rights Law

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Microsoft v. United States

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