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contradicts the term’s traditional domestic limits. See USA PATRIOT ACT, Pub. L. 107‐56, § 220; 115 Stat. 272, 291–92 (2001) (codified at 18 U.S.C. § 2703(a), (b)); 21st Century Department of Justice Appropriations Authorization Act, Pub. L. 107‐273, § 11010, 116 Stat. 1758, 1822 (2002) (codified at 18 U.S.C. § 2703(g)); Foreign Evidence Request Efficiency Act of 2009, Pub. L. 111‐79, § 2, 123 Stat. 2086, 2086 (2009) (codified at 18 U.S.C. § 2711(3)(A)). These amendments to the SCA are fully consistent with the historical role of warrants as legal instruments that pertain to discrete objects located within the United States, and that are designed to protect U.S. citizens’ privacy interests. The magistrate judge took a different view of the legislative history of certain amendments to the SCA. He took special notice of certain legislative history related to the 2001 amendment to the warrant provisions enacted in the USA PATRIOT ACT. A House committee report explained that “[c]urrently, Federal Rules [sic] of Criminal Procedure 41 requires that the ‘warrant’ be obtained ‘within the district’ where the property is located. An investigator, for example, located in Boston . . . might have to seek a suspect’s electronic e‐mail from an Internet service provider (ISP) account located in California.” In re Warrant, 15 F. Supp. 3d at 473 (quoting H.R. Rep. 107‐236(I), at 57 (2001)). The magistrate judge reasoned that this statement equated the location of property with the location of the service provider, and not with the location of any server. Id. at 474. But this excerpt says nothing about the need to cross international boundaries; rather, while noting the “cross‐jurisdictional nature of the Internet,” it discusses only amendments to Rule 41 that allow magistrate judges “within the district” to issue warrants to be executed in other “districts”—not overseas. Id. at 473 (quoting H.R. Rep. 107‐236(I), at 58). Furthermore, the Committee discussion reflects no expectation that the material to be searched and seized would be located any place other than where the 27

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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: 14 de jul. de 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

Primary Documents

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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