Supreme Court to Decide on Turning Over Data Stored Abroad

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 16, 2021

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The US Supreme Court has agreed to hear a case on whether federal prosecutors can require companies to hand over data that’s stored outside the United States.

As the New York Times reported, the case of United States v. Microsoft arose from a federal drug investigation.

Prosecutors wanted to get the emails of a suspect that were stored in a Microsoft data center in Dublin, Ireland. They claimed that they were legally entitled to get the emails since Microsoft, based in Redmond, Washington, is a US company.

A federal judge granted this request in 2013, but Microsoft challenged the order.

Outside the Borders

The Court of Appeals for the Second Circuit, in Manhattan, ruled that the warrant couldn’t be used to obtain evidence that was outside the borders of the US.

This decision was based on a 1986 federal law, the Stored Communications Act, enacted at the dawn of the Internet era. The Act deals with voluntary and compelled disclosures of “stored wire and electronic communications and transactional records.” 

According to the Court of Appeals,

it would be an impermissible extraterritorial application of the Stored Communications Act to require Microsoft to collect and produce information from a foreign server.

Fourth Amendment

The Fourth Amendment to the US Constitution protects the rights of people “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”

However, the Constitution was drafted before there was such a thing as “stored electronic communications.” So the courts and Congress have struggled to construe the right to privacy implied by the Constitution in light of the capabilities of the internet.

The US Justice Department asked the Supreme Court to decide the case, noting that it was simple for Microsoft to produce the emails from within the US with a few mouse clicks and that the lack of the evidence was causing harm to public safety and law enforcement.

According to the Justice Department’s brief,

Hundreds if not thousands of investigations of crimes — ranging from terrorism, to child pornography, to fraud — are being or will be hampered by the government’s inability to obtain electronic evidence.

The Justice Department contended that other email providers such as Google and Yahoo were using the Second Circuit’s decision to resist warrants when the would require retrieving data from a foreign server.

Forced to Choose

Microsoft countered that turning over data stored abroad could violate foreign laws and that it shouldn’t be forced to choose which country’s law to violate. 

Also, argued Microsoft, if US law enforcement officials could seek data stored in other countries, other countries might try to get access to the data of American citizens stored in the US.

Under US law, companies may not share data stored on US servers with foreign governments. 

Microsoft asserted that the proper procedure would be for the Department of Justice to petition Ireland under a joint agreement to share evidence called the Mutual Law Enforcement Treaty. The problem, from the DOJ’s perspective, is that it can take months or years to get information using the Treaty.

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