The Internet has not only become a backbone for social and business commerce, but, it has become a vehicle to pursue nefarious purposes. Law enforcement and intelligence agencies, believing that material evidence is located outside the United States, seek to hold U.S. companies, with foreign operations, responsible for producing that evidence to the government in the United States. In those cases, the U.S. government often maintains that evidence is within the control of and accessible by U.S. companies no matter where the evidence is located. The tension between individual privacy interests and governmental interests in security and foreign sovereignty is raising its head once again, this time before the Supreme Court of the United States.
On Monday, October 16, 2017, the Supreme Court, in a case which raises the broader question of how hard federal and state governments can push to obtain evidence hosted abroad, agreed to take up the specific issue of “[w]hether 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.” U.S. Supreme Court Docket, 17-2 United States v. Microsoft Corporation, available at https://www.supremecourt.gov/qp/17-00002qp.pdf. The issue arises from the United States’ petition for a writ of certiorari in United States v. Microsoft Corp., Sup. Ct. No. 17-2, where the Second Circuit “conclude[d] that Congress did not intend the [Stored Communications Act’s] SCA’s warrant provisions to apply extraterritorially.” Microsoft Corp. v. United States, 829 F.3d 197, 222 (2d Cir. 2016).
The issue in this case concerned a warrant directed at Microsoft, requiring it to seize and produce the email contents for a Microsoft customer who uses a Microsoft email account, and was believed to do so in furtherance of narcotics trafficking. Id. at 200. Microsoft produced its non-content information that was stored in the United States, but moved to quash the warrant as to the customer content, which was stored and maintained in Ireland. The challenge pitted Microsoft’s view of a warrant as traditionally having territorial limitations, against the government’s view that this was simply an extension of the principle requiring production of documents within the corporation’s “custody or control.” Id. at 201. The district...
