Blake A. Klinkner 2017-12-07 03:24:04
United States v. Microsoft: Are Emails Stored on Foreign Computer Servers Off-Limits to Warrants Issued by American Judges? Did you know that when you access your email, you could be accessing files which are stored on a computer server overseas even though you access your account in the United States? And did you know that if your email provider chooses to store some of your emails on foreign computer servers, those particular emails might be beyond the warrant powers of American authorities? This question over the degree to which warrant powers may extend to U.S.-based email accounts which happen to contain individual emails stored on foreign computer servers is an important one, and the United States Supreme Court has recently agreed to hear a case that will provide long-overdue guidance into this area of the law. In United States v. Microsoft, the United States obtained a warrant directing Microsoft to seize and produce the contents of an email account belonging to an individual whom the government suspected was involved in narcotics trafficking. The warrant was served on Microsoft at its headquarters in Washington, and Microsoft provided the government with various records associated with the email account that were stored on computer servers located inside the United States. However, many of the email records, including the key emails sought by the government, were actually stored on a computer server that was located in Dublin, Ireland, and Microsoft moved the district court to quash the search warrant to the extent it directed Microsoft to access this foreign server and produce the records which are stored outside the United States. The district court acknowledged that the “obligation of an Internet Service Provider like Microsoft to disclose to the Government customer information or records is governed by the Stored Communications Act, passed as part of the Electronic Communications Privacy Act of 1986.” The Stored Communications Act “was enacted at least in part in response to a recognition that the Fourth Amendment protections that apply in the physical world, and especially to one’s home, might not apply to information communicated through the internet.” While recognizing that federal courts “are without authority to issue warrants for the search and seizure of property outside the territorial limits of the United States,” the district court concluded that “in the context of digital information, a search occurs when information from or about the data is exposed to possible human observation, such as when it appears on a screen, rather than when it is copied by the hard drive or processed by the computer” and therefore “[i]n this case, no such exposure takes place until the information is reviewed in the United States, and consequently no extraterritorial search has occurred.” The district court denied Microsoft’s motion to quash, and held Microsoft in contempt for refusing to produce the records stored on its Irish server. On appeal, the United States Court of Appeals for the Second Circuit reversed the district court, ordering that the warrant be quashed insofar as it demanded digital records stored outside the United States. Here, the Second Circuit first determined that “Congress did not intend the [Stored Communication Act’s] warrant provisions to apply extraterritorially.” The Second Circuit next determined that “[b]ecause the content subject to the Warrant is located in, and would be seized from, the Dublin datacenter, the conduct that falls within the focus of the [Stored Communications Act] would occur outside the United States, regardless of the customer’s location and regardless of Microsoft’s home in the United States,” and therefore the warrant implicated extraterritoriality which Congress did not intend to be permissible. When the United States petitioned the Supreme Court for review, many observers doubted that the Supreme Court would accept the Microsoft case because it does not present a split among the federal appellate courts, and also because Congress is considering legislation that would update the Stored Communications Act provisions regarding records stored in foreign computer servers. However, the federal government urged the Supreme Court to grant certiorari by stating that “[n]either the absence of a circuit conflict nor the speculative possibility of eventual legislative action diminishes the acute and present need for this court’s review of a legally unsound decision that is frustrating important investigations around the country.” Thirty-three states also joined in briefing to the Court asking for review of Microsoft, stating that the Second Circuit’s decision “is interfering with the ability of state and local law enforcement agencies to investigate and prosecute crime in their jurisdictions.” In agreeing to review the Microsoft case despite the absence of a circuit split, and also in the face of potential legislative revisions to the Stored Communications Act, it is clear that the Supreme Court recognizes the importance of this matter and wishes to provide much-needed guidance. The parties and the courts in Microsoft all acknowledged the reality that email users who are based in the United States might be able to prevent American authorities from accessing their email accounts by falsely registering their accounts with a foreign address, and this tactic will become more common to avoid law enforcement. Therefore, law enforcement and privacy advocates throughout the country will anxiously await guidance from the Court on how email accounts fit into a 30-year old statute and many more years of Fourth Amendment jurisprudence.
Published by Wyoming State Bar . View All Articles.
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