June 29, 2015 Articles

Searches and Seizures of Foreign Email Servers: Microsoft v. United States

Does the Stored Communications Act apply beyond the borders of the United States?

By Theodore G. Fletcher

Does Title 18, section 2701, of the United States Code, the Stored Communications Act (SCA), apply beyond the borders of the United States? To answer this question, the litigation bar should pay attention to Microsoft’s challenge of the subpoena and warrant of an email account on an Irish email server by the Department of Justice (DOJ). The case is styled Microsoft v. United States, No. 14-cv-2985 (2d Cir.).

Microsoft’s opposition to the DOJ subpoena raises significant concerns about the extraterritorial reach of criminal and civil investigations by the government. This issue affects attorneys in a broad range of practice areas. Thus, counsel must be aware of the implications of electronic documents’ storage location, the circumstances that could subject those documents to judicial process, and the differing laws governing access to those documents.

The U.S. Attorney for the Southern District of New York seeks the email of a target in a narcotics distribution investigation that is hosted on a Microsoft email server in Ireland. Microsoft challenges the warrant on the grounds that the email is located on a foreign server, beyond the reach of the SCA. Magistrate Judge Francis in the Southern District of New York denied Microsoft’s challenge. Chief Judge Preska upheld the magistrate judge’s order and opinion, and issued a contempt order against Microsoft. Microsoft appeals and is joined by numerous amici from the telecommunications and computer industries, civil liberties organizations, and the Republic of Ireland.

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