Academic journal article Federal Communications Law Journal

Where in the World Is Your Data? Who Can Access It?

Academic journal article Federal Communications Law Journal

Where in the World Is Your Data? Who Can Access It?

Article excerpt

TABLE OF CONTENTS  I.   INTRODUCTION                                                    159 II.  THE STORED COMMUNICATIONS ACT: AN OUTDATED STATUTE              161      APPLIED TO A MODERN-DAY DISPUTE      A. THE PROBLEM: THE OUTDATED TEXT OF THE STORED                 162         COMMUNICATIONS ACT      B. THE STORED COMMUNICATIONS ACT: TOO OLD TO REGULATE           163         THE MICROSOFT CLOUD AND THE DATA WITHIN IT III. MICROSOFT CORP. V. UNITED STATES: ONE OF MANY REASONS THE       165      STORED COMMUNICATIONS ACT REQUIRES AN UPDATE      A. RAMIFICATIONS OF MICROSOFT CORP. V. UNITED STATES            165         BEYOND ONE SEARCH WARRANT      B. CLOUD INNOVATION: MICROSOFT UNDERWATER DATA CENTER           167      C. CONGRESS' LACK OF IMPACTFUL ACTION LEAVES THE SCA IN         168         THE TWENTIETH CENTURY IV.  SUGGESTED AMENDMENTS TO MODERNIZE THE STORED                    170      COMMUNICATIONS ACT      A. FIRST PROPOSED AMENDMENT: UNITED STATES LAW                  171         ENFORCEMENT HAS JURISDICTION OVER UNITED STATES         CITIZEN'S DATA      B. SECOND PROPOSED AMENDMENT: UNITED STATES LAW                 173         ENFORCEMENT HAS JURISDICTION OVER DATA PHYSICALLY         STORED IN THE UNITED STATES      C. THIRD PROPOSED AMENDMENT : LAW ENFORCEMENT NEEDS A           174         SEARCH WARRANT AND NOTICE REQUIREMENT FOR SEARCH OF         ANY ELECTRONIC COMMUNICATIONS      D. AMENDMENT APPLICATION TO MICROSOFT CORP. V. UNITED           176         STATES AND MICROSOFT'S UNDERWATER DATA CENTERS V.   CONCLUSION                                                      177 

I. INTRODUCTION

People take pictures on their Apple iPhones, save documents to Google Drive, or send emails using Microsoft's Outlook.com. Companies, like Microsoft, Apple, and Google, make these services available to their users and store the user-created data on their own servers, as opposed to on the device used to create the work product. (1) This storage function is called the "cloud." (2) Customers using the cloud can access their data from any Internet-enabled device and share the data with others while preventing data loss. (3) The cloud is a large number of grounded servers located across the globe, and in the United States alone, the cloud is responsible for two percent of the country's electricity usage. (4) The servers powering the cloud must be stored at a location with a low temperature because if they overheat, the servers will crash. (5) When these servers, hosted in data centers, overheat, users' devices cannot access the content they need. (6) In response, Microsoft developed Project Natick to solve this problem of overheated servers by operating data centers in the ocean. (7) The ocean keeps the data centers cool so consumers can access their data without delay, and the technology companies furnishing the servers save money on their electricity bill. (8)

The Stored Communications Act ("SCA"), which is part of Title II of the Electronic Communications Privacy Act ("ECPA"), is the "primary law governing government and private actor access to our stored online communications" written in 1986. (9) Courts differ on how to interpret the anachronistic statute, some choosing to protect electronic communications that did not exist at the time of the SCA'S passage, like data stored in the cloud, while others fail to modernize their interpretation. (10) Without legal protection, the technological process will be inhibited if consumers and businesses do not have confidence that their data will be secure in new technologies like the cloud. (11)

The Second Circuit recently grappled with the SCA's applicability to cloud data stored in Dublin in a Microsoft data center. (12) The Court denied the government's search warrant application to access data in the Dublin data center because the SCA did not specifically mention that the law governs data extraterritorially. (13) An obsolete SCA thus produces an environment where online cloud data does not possess the same privacy protections as data stored on a home computer or in a filing cabinet. …

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