Academic journal article Harvard Law Review

Privacy - Stored Communications Act - Second Circuit Holds That the Government Cannot Compel an Internet Service Provider to Produce Information Stored Overseas

Academic journal article Harvard Law Review

Privacy - Stored Communications Act - Second Circuit Holds That the Government Cannot Compel an Internet Service Provider to Produce Information Stored Overseas

Article excerpt


Nearly all Internet users interact with "the cloud" every day, but most never consider what--or where--"the cloud" is. (1) As it turns out, "the cloud" is composed of server farms (2) located all over the world. (3) Companies like Google, Facebook, Apple, Microsoft, and Amazon now host large quantities of data abroad, (4) raising novel jurisdictional questions. Recently, in Microsoft Corp. v. United States, (5) the Second Circuit held that the government cannot compel Internet Service Providers (ISPs) to turn over data stored overseas, even with a warrant. (6) The court did not acknowledge the unique "un-territorial" nature of data, instead proceeding as if it were considering a physical object. Increasingly, courts must apply old laws to new technology. In doing so, they can either acknowledge the unique features of modern technology, or, like the Second Circuit, they can disregard these differences. Only the first approach allows courts to grapple with the legal issues generated when old law meets new tech. (7) In Microsoft, the majority did not engage with the emerging scholarly consensus that the "where" of data is not a straightforward inquiry. (8) It thus did not address the novel issues implicated in this case and failed to reason through its decision fully.

In December of 2013, Magistrate Judge Francis of the Southern District of New York issued a warrant under the Stored Communications Act (9) (SCA) for the content associated with a Microsoft Network (MSN) email address. (10) Microsoft handed over responsive data stored in the United States. (11) However, much of the requested information was stored on a Microsoft server in Ireland. (12) Believing the data in Ireland to be beyond the jurisdiction of the warrant, Microsoft moved to quash the warrant. (13)

The magistrate judge denied the motion, and Judge Preska affirmed for the Southern District. (14) The court noted that a traditional search warrant cannot be executed outside of the United States, (15) but that the language of the SCA is ambiguous regarding jurisdiction. (16) An SCA warrant, the court reasoned, is a hybrid between a search warrant and a subpoena. (17) Its subpoena-like qualities supported the government's position--a subpoena recipient must hand over information it controls no matter where that information is located. (18) The practical consequences of its decision bolstered the court's conclusion: letting Microsoft withhold the data stored in Ireland would allow criminals to evade SCA warrants by forcing the government to rely solely on Mutual Legal Assistance Treaties (MLATs) to obtain information stored abroad. (19) This could not have been Congress's intention--MLATs are slow and unreliable, and many countries have no MLAT with the United States. (20) Finally, the court noted "the concerns that animate the presumption against extraterritoriality are simply not present" in this case. (21)

The Second Circuit reversed. Writing for the majority, Judge Carney (22) held that the SCA does not apply extraterritorially, and that requiring Microsoft to turn over the disputed data would constitute an extraterritorial application of the statute. (23)

Applying the two-part test for extraterritoriality laid out by the Supreme Court, the court first concluded that the SCA does not apply extraterritorially. (24) The court found no indication of Congress's intent to override the strong presumption against the extraterritorial application of statutes. (25) Further, the court held that the word "warrant" was a term of art, whose meaning was tied to Fourth Amendment search warrants that "protect[] privacy in a distinctly territorial way." (26) The court rejected the government's argument that an SCA warrant is a search warrant/subpoena hybrid: the SCA itself distinguishes between subpoenas and warrants, (27) and nowhere uses the word "hybrid. …

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