By: Jen Goss, November 13, 2017
In October, the Supreme Court granted certiorari in the case of United States v. Microsoft Corp. A Supreme Court decision in this case will provide the government and service providers with an answer to “whether a United States provider of email services must comply with a probable-cause-based warrant issued under 18 U.S.C. § 2703 by making disclosure in the United States of electronic communications within that provider’s control, even if the provider has decided to store that material abroad.” A Supreme Court ruling will provide much needed guidance to lower courts on this heavily debated issue.
United States v. Microsoft Corp. is about the reach of U.S. law enforcement agencies and their ability to acquire electronic communications evidence located overseas. The analysis turns on the court’s interpretation of the Stored Communications Act (SCA). Microsoft brought the case to the Second Circuit on appeal, after the U.S. District Court for the Southern District of New York denied its motion to quash a warrant issued under § 2703 of the SCA and compelled Microsoft to turn over a customer’s email content that was stored in Ireland. Microsoft argued that a warrant has territorial limitations and that the government was trying to reach beyond its jurisdiction by compelling information from outside the United States. The government, focused on the requirements for disclosure and argued that “similar to a subpoena, [an SCA warrant] require[es] the recipient to deliver records, physical objects, and other materials to the government” regardless of location, as long as the communications were under Microsoft’s (a U.S. company) control. The Second Circuit sided with Microsoft, holding that the SCA does not authorize courts to enforce warrants that compel U.S.-based service providers to turn over customer e-mails that are stored exclusively on foreign servers.
The Second Circuit’s decision limits the government’s warrant authority to data within the U.S. and restricts the government’s ability to reach data held in storage facilities overseas even if that data is accessible from the territorial United States. It forces the United States to try and request data held in foreign storage locations through the Mutual Legal Assistance Treaty (MLAT) process. However, the U.S. does not have an MLAT in place with every country, and the process can be time-consuming. This leaves open the possibility that U.S. persons could remain outside the reach of U.S. law enforcement collection by ensuring that their data is stored overseas.
Multiple courts outside the Second Circuit have rejected the Court’s analysis, concluding that U.S. warrants cover all electronic communications data controlled by U.S.-based service providers. However, the Second Circuit opinion has led to appeals on these rulings by other service providers, such as Google. The Second Circuit’s decision presents additional problems when applied to providers like Google. Google’s stored data is constantly changing facilities based on an algorithm designed to maximize storage efficiency by automatically moving data from one facility to another, and even across international borders. Google would need to determine the location of the data at the time the warrant is granted. If the data is in one of Google’s overseas facilities at that time, then the data is outside the reach of the warrant. However, unlike the Microsoft case, the data could not be acquired through an MLAT because Google’s employees are all U.S.-based and thus outside the reach of foreign governments.
The Supreme Court’s decision to hear this case makes it seem likely that it will overturn the Second Circuit’s decision, but the Supreme Court cannot solve the issues that this case presents by itself. Congress needs to help create solutions to the issues presented in the Microsoft case. Some members of Congress have recognized the need for new legislation as well, and have begun efforts to modernize the Electronic Communications Privacy Act (ECPA). The Supreme Court has recognized the importance addressing the reach of U.S. warrants overseas; it is time Congress acts too.