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Congress Passes Law Clarifying Scope of U.S. Warrants for Email Data Stored Overseas; New Law Moots Microsoft Case Before SCOTUS

Posted on April 23rd, 2018

CLOUD Act renders Microsoft case moot.

In U.S. v. Microsoft Corporation, No. 17-2 (U.S. April 2018), the Supreme Court of the United States granted certiorari to decide whether a United States-based provider of e-mail services must disclose electronic communications within its control to the government when the provider stores the communications abroad.

In December 2013, federal law enforcement agents applied to the United States District Court for the Southern District of New York for a warrant requiring Microsoft to disclose all e-mails and other information associated with the account of one of its customers. Satisfied that the agents had demonstrated probable cause to believe that the account was being used to further illegal drug trafficking, a Magistrate Judge issued the requested warrant under 18 U. S. C. §2703. The warrant directed Microsoft to disclose to the Government the contents of a specified e-mail account and all other records or information associated with the account to the extent that the information is within Microsoft’s possession, custody, or control.

After service of the warrant, Microsoft determined that the account’s e-mail contents were stored in Microsoft’s datacenter in Dublin, Ireland. Microsoft moved to quash the warrant with respect to the information stored in Ireland. The Magistrate Judge denied Microsoft’s motion. Soon after, the District Court held Microsoft in civil contempt for refusing to comply fully with the warrant. On appeal, a panel of the Court of Appeals for the Second Circuit reversed the denial of the motion to quash and vacated the civil contempt finding, holding that requiring Microsoft to disclose the electronic communications in question would be an unauthorized extraterritorial application of the law.

On March 23, 2018, Congress enacted and the President signed into law the Clarifying Lawful Overseas Use of Data Act (CLOUD Act). The CLOUD Act amends the Stored Communications Act, adding a service provider shall comply with the obligations of this chapter to preserve, backup, or disclose the contents of a wire or electronic communication and any record or other information pertaining to a customer or subscriber within such provider’s possession, custody, or control, regardless of whether such communication, record, or other information is located within or outside of the United States. CLOUD Act §103(a)(1). Soon thereafter, the Government obtained, pursuant to the new law, a new warrant covering the information requested in the warrant at issue in this case.

The parties agree that the new warrant replaced the original warrant. The case, therefore, has become moot. Following the Court’s established practice in such cases, the judgment on review is accordingly vacated, and the case is remanded to the United States Court of Appeals for the Second Circuit with instructions first to vacate the District Court’s contempt finding and its denial of Microsoft’s motion to quash, then to direct the District Court to dismiss the case as moot.

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