On February 27, 2018, the U.S. Supreme Court heard oral arguments in United States v. Microsoft, No. 17-2. The case presents the question whether a U.S.-based entity (Microsoft) must comply with a judicially-authorized search warrant that was issued under Section 2703 of the Stored Communications Act by providing overseas data to the U.S. Department of Justice (“DOJ”).
Background
This case arises in connection with Microsoft’s role as an operator of a web-based email service, which stored a user’s emails in a data center located overseas (in Ireland). In December 2013, the federal Government obtained a judicially-authorized search warrant for email content and additional information associated with a Microsoft email account. In response to the warrant, Microsoft provided the DOJ with customer account information that was stored in Redmond, Washington, but refused to disclose the content of the emails, which were stored in a data center in Ireland. The Government moved to compel Microsoft’s disclosure of overseas email data, and the district court granted the Government’s motion, finding that the warrant obligated Microsoft to turn over the overseas materials. In July 2016, the U.S. Court of Appeals for the Second Circuit reversed the district court’s ruling. Citing the Supreme Court’s decision in Morrison v. National Australia Bank Ltd., 561 U.S. 247 (2010), the Second Circuit reasoned that Congress did not intend the SCA’s warrant provisions to apply extraterritorially. Microsoft Corp. v. United States 829 F.3d 197 (2d Cir. 2016).
We previously wrote about the Second Circuit’s ruling in Microsoft here: https://www.shearman.com/-/media/Files/NewsInsights/Publications/2016/07/In-the-Matter-of-Microsoft--Why-It-Matters-LT-071916.pdf
The Supreme Court Agrees To Decide The Issue
The U.S. Supreme Court granted certiorari on October 16, 2017. Specifically, the Court agreed to hear the following issue: “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.” Merits briefing was completed on February 12, 2018. The Government conceded in its opening brief that the SCA does not apply extraterritorially in light of the Supreme Court’s decision in Morrison and RJR Nabisco, 136 S.Ct. 2090 (2016). In those cases, the Supreme Court established a strong presumption against the extraterritorial application of federal statutes, unless Congress expressed a clear intent for the law to apply outside...
