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Can The Government Obtain a Warrant For Email Data Stored Overseas?

Posted on December 15th, 2014

In the Matter of a Warrant to Search the E-mail Account Controlled and Maintained by Microsoft Corporation, 13 Mag. 2814 (S.D.N.Y), the Southern District of New York considered a warrant authorizing the search and seizure of Microsoft email analytics and data stored overseas in Dublin, Ireland.

Microsoft moved to quash the subpoena, claiming that because it stored the requested email data overseas, a U.S. court lacked the power to issue a warrant for its seizure.  The government argued that the Stored Communications Act (SCA) 18 U.S.C. §2703(a) provided the court with all the power it needed.

The magistrate judge considered the language of the SCA, noting an ambiguity between whether the Federal Rules of Criminal Procedure applied to limit the court’s extraterritorial reach (as Microsoft argued) or whether language in the SCA provided the court with additional power (as the government argued).

The court sided with the government.  The court first noted that although the SCA uses the term “warrant,” what the SCA provides for is actually a hybrid of a warrant and a subpoena.  The government obtains the search power like a warrant (issued only after a showing of probable cause) but executes it like a subpoena (the email custodian provides the data, and government agents never physically search or seize the data.)  The court reasoned that this “unique structure” bolstered the government’s position because a U.S. subpoena can reach data regardless of its physical location (including overseas). Further, the court noted, any “search” of Microsoft’s data would only occur when a human reviewer looked at the data on a screen, not when Microsoft copied it from its hard drive, meaning no extraterritorial search would actually take place. The court also cited legislative history and practical considerations supporting the government’s position.

Concluding that the SCA’s warrant does not violate the presumption against extraterritorial application of U.S. law, the court denied Microsoft’s motion to quash and ordered that the government could move forward with procuring the data from Ireland.

ILS – Plaintiff Electronic Discovery Experts

Did you know? In 2013, a federal court in New Jersey ruled that the Stored Communications Act also applies to Facebook wall posts.

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