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Andrew J. Pincus, Paul W. Hughes, James F. Tierney, Mayer Brown LLP, Washington, DC, for Amici Curiae BSA | The Software Alliance, Center for Democracy and Technology, Chamber of Commerce of the United States, The National Association of Manufacturers, and ACT | The App Association, in support of Appellant. Steven A. Engel, Dechert LLP, New York, NY, for Amicus Curiae Anthony J. Colangelo, in support of Appellant. Alan C. Raul, Kwaku A. Akowuah, Sidley Austin LLP, Washington, DC, for Amici Curiae AT&T Corp., Rackspace US, Inc., Computer & Communications Industry Association, i2 Coalition, and Application Developers Alliance, in support of Appellant. Peter D. Stergios, Charles D. Ray, McCarter & English, LLP, New York, NY and Hartford, CT, for Amicus Curiae Ireland. Peter Karanjia, Eric J. Feder, Davis Wright Tremaine LLP, New York, NY, for Amici Curiae Amazon.com, Inc., and Accenture PLC, in support of Appellant. Michael Vatis, Jeffrey A. Novack, Steptoe & Johnson LLP, New York, NY; Randal S. Milch, Verizon Communications Inc., New York, NY; Kristofor T. Henning, Hewlett‐Packard Co., Wayne, PA; Amy Weaver, Daniel Reed, Salesforce.com, Inc., San Francisco, CA; Orin Snyder, Thomas G. Hungar, Alexander H. Southwell, Gibson, Dunn & Crutcher LLP, New York, NY; Mark Chandler, Cisco Systems, Inc., San Jose, CA; Aaron Johnson, eBay Inc., San Jose, CA, for Amici Curiae Verizon Communications, Inc., Cisco Systems, Inc., Hewlett‐Packard Co., eBay Inc., Salesforce.com, Inc., and Infor, in support of Appellant. 3

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Microsoft v. United States

Case Law

Country

United States

Country Location

Latitud: 39.778231903243785

Longitud: -100.8801256788983

Country Location (vinculado Case Law): United States

Decision Date: 14 jul 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 Name and URL: Columbia Global Freedom of Expression

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Microsoft v. United States

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