{"id":22943,"date":"2016-07-14T18:00:11","date_gmt":"2016-07-14T23:00:11","guid":{"rendered":"http:\/\/fourthamendment.com\/?p=22943"},"modified":"2016-07-14T19:04:45","modified_gmt":"2016-07-15T00:04:45","slug":"ca2-court-order-under-sca-cant-require-production-of-emails-stored-off-shore","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=22943","title":{"rendered":"CA2: Court order under SCA can’t require production of emails stored off-shore"},"content":{"rendered":"

In the Matter of a Warrant to Search a Certain E Mail Account Controlled and Maintained by Microsoft Corporation, Microsoft Corporation v. United States<\/a>, 2016 U.S. App. LEXIS 12926 (2d Cir. July 14, 2016):
\n<\/p>\n

Microsoft Corporation appeals from orders of the United States District Court for the Southern District of New York (1) denying Microsoft’s motion to quash a warrant (“Warrant”) issued under the Stored Communications Act, 18 U.S.C. \u00a7\u00a7 2701 et seq., to the extent that the orders required Microsoft to produce the contents of a customer’s e-mail account stored on a server located outside the United States, and (2) holding Microsoft in civil contempt of court for its failure to comply with the Warrant. We conclude that \u00a7 2703 of the Stored Communications Act does not authorize courts to issue and enforce against U.S. based service providers warrants for the seizure of customer e mail content that is stored exclusively on foreign servers.<\/p>\n

. . . <\/p>\n

Microsoft Corporation appeals from orders of the United States District Court for the Southern District of New York denying its motion to quash a warrant (\u201cWarrant\u201d) issued under \u00a7 2703 of the Stored Communications Act (\u201cSCA\u201d or the \u201cAct\u201d), 18 U.S.C. \u00a7\u00a7 2701 et seq., and holding Microsoft in contempt of court for refusing to execute the Warrant on the government\u2019s behalf.\u00a0\u00a0The Warrant directed Microsoft to seize and produce the contents of an e mail account that it maintains for a customer who uses the company\u2019s electronic communications services.\u00a0\u00a0A United States magistrate judge (Francis, M.J.) issued the Warrant on the government\u2019s application, having found probable cause to believe that the account was being used in furtherance of narcotics trafficking.\u00a0\u00a0The Warrant was then served on Microsoft at its headquarters in Redmond, Washington.<\/p>\n

Microsoft produced its customer\u2019s non content information to the government, as directed.\u00a0\u00a0That data was stored in the United States.\u00a0\u00a0But Microsoft ascertained that, to comply fully with the Warrant, it would need to access customer content that it stores and maintains in Ireland and to import that data into the United States for delivery to federal authorities.\u00a0\u00a0It declined to do so.\u00a0\u00a0Instead, it moved to quash the Warrant.\u00a0\u00a0The magistrate judge, affirmed by the District Court (Preska, C.J.), denied the motion to quash and, in due course, the District Court held Microsoft in civil contempt for its failure.\u00a0\u00a0<\/p>\n

Microsoft and the government dispute the nature and reach of the Warrant that the Act authorized and the extent of Microsoft\u2019s obligations under the instrument.\u00a0\u00a0For its part, Microsoft emphasizes Congress\u2019s use in the Act of the term \u201cwarrant\u201d to identify the authorized instrument.\u00a0\u00a0Warrants traditionally carry territorial limitations:\u00a0United States law enforcement officers may be directed by a court issued warrant to seize items at locations in the United States and in United States controlled areas, see Fed. R. Crim. P. 41(b), but their authority generally does not extend further.\u00a0\u00a0<\/p>\n

The government, on the other hand, characterizes the dispute as merely about \u201ccompelled disclosure,\u201d regardless of the label appearing on the instrument.\u00a0\u00a0It maintains that \u201csimilar to a subpoena, [an SCA warrant] requir[es] the recipient to deliver records, physical objects, and other materials to the government\u201d no matter where those documents are located, so long as they are subject to the recipient\u2019s custody or control.\u00a0\u00a0Gov\u2019t Br. at 6.\u00a0\u00a0It relies on a collection of court rulings construing properly served subpoenas as imposing that broad obligation to produce without regard to a document\u2019s location.\u00a0\u00a0E.g., Marc Rich & Co., A.G. v. United States, 707 F.2d 663 (2d Cir. 1983).\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0<\/p>\n

For the reasons that follow, we think that Microsoft has the better of the argument.\u00a0\u00a0When, in 1986, Congress passed the Stored Communications Act as part of the broader Electronic Communications Privacy Act, its aim was to protect user privacy in the context of new technology that required a user\u2019s interaction with a service provider.\u00a0\u00a0Neither explicitly nor implicitly does the statute envision the application of its warrant provisions overseas.\u00a0\u00a0Three decades ago, international boundaries were not so routinely crossed as they are today, when service providers rely on worldwide networks of hardware to satisfy users\u2019 21st\u2013century demands for access and speed and their related, evolving expectations of privacy.\u00a0\u00a0\u00a0 <\/p>\n

Rather, in keeping with the pressing needs of the day, Congress focused on providing basic safeguards for the privacy of domestic users.\u00a0\u00a0Accordingly, we think it employed the term \u201cwarrant\u201d in the Act to require pre disclosure scrutiny of the requested search and seizure by a neutral third party, and thereby to afford heightened privacy protection in the United States.\u00a0\u00a0It did not abandon the instrument\u2019s territorial limitations and other constitutional requirements.\u00a0\u00a0The application of the Act that the government proposes\u00a0\u2015\u00a0interpreting \u201cwarrant\u201d to require a service provider to retrieve material from beyond the borders of the United States\u2015 would require us to disregard the presumption against extraterritoriality that the Supreme Court re stated and emphasized in Morrison v. National Australian Bank Ltd., 561 U.S. 247 (2010) and, just recently, in RJR Nabisco, Inc. v. European Cmty., 579 U.S. __, 2016 WL 3369423 (June 20, 2016).\u00a0\u00a0We are not at liberty to do so.\u00a0\u00a0\u00a0\u00a0<\/p>\n

We therefore decide that the District Court lacked authority to enforce the Warrant against Microsoft.\u00a0\u00a0Because Microsoft has complied with the Warrant\u2019s domestic directives and resisted only its extraterritorial aspects, we REVERSE the District Court\u2019s denial of Microsoft\u2019s motion to quash, VACATE its finding of civil contempt, and REMAND the cause with instructions to the District Court to quash the Warrant insofar as it directs Microsoft to collect, import, and produce to the government customer content stored outside the United States.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

In the Matter of a Warrant to Search a Certain E Mail Account Controlled and Maintained by Microsoft Corporation, Microsoft Corporation v. United States, 2016 U.S. App. LEXIS 12926 (2d Cir. July 14, 2016):<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[25,15],"tags":[],"class_list":["post-22943","post","type-post","status-publish","format-standard","hentry","category-e-mail","category-f-r-crim-p-41"],"_links":{"self":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/22943","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=22943"}],"version-history":[{"count":1,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/22943\/revisions"}],"predecessor-version":[{"id":22944,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/22943\/revisions\/22944"}],"wp:attachment":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=22943"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=22943"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=22943"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}