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Although the Warrant was served on Microsoft, its printed boilerplate language advises that it is addressed to “[a]ny authorized law enforcement officer.” Id. at 44. It commands the recipient to search “[t]he PREMISES known and described as the email account [redacted]@MSN.COM, which is controlled by Microsoft Corporation.”6 Id. It requires the “officer executing [the] warrant, or an officer present during the execution of the warrant” to “prepare an inventory . . . and promptly return [the] warrant and inventory to the Clerk of the Court.” Id. Its Attachment A, “Property To Be Searched,” provides, “This warrant applies to information associated with [redacted]@msn.com, which is stored at premises owned, maintained, controlled, or operated by Microsoft Corporation . . . .” Id. at 45. Attachment C, “Particular Things To Be Seized,”7 directs Microsoft to disclose to the government, “for the period of inception of the account to the present,” and “[t]o the extent that the information . . . is within the possession, custody, or control of MSN [redacted],” id., the following information: (a) “The contents of all e‐mails stored in the account, including copies of e‐mails sent from the account”; (b) “All records or other information regarding the identification of the account,” including, among other things, the name, physical address, telephone numbers, session times and durations, log‐in IP addresses, and sources of payment associated with the account; (c) “All records or other information stored by an individual using the account, including address books, contact and buddy lists, pictures, and files”; and (d) “All records pertaining to communications between MSN [redacted] and any person regarding the account, including contacts with support services and records of actions taken.” The name of the e‐mail address associated with the account is subject to a sealing order and does not bear on our analysis. 7 Although the Warrant includes an Attachment A and C, it appears to have no Attachment B. 6 10

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Microsoft v. United States

Case Law

Country

United States

Country Location

Latitude: 39.778231903243785

Longitude: -100.8801256788983

Country Location (Lié Case Law): United States

Decision Date: 14 juil. 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 US.pdf
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CYRILLA: Global Digital Rights Law

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Microsoft v. United States

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