The Supreme Court heard oral arguments in United States v. Microsoft Corporation, No. 14-2985 (2nd Cir. July 14, 2016), a case that could have wide-ranging effects on email privacy. The justices are expected to issue a June 2018 ruling on whether the Stored Communications Act (“SCA”) allows the U.S. government to access emails stored overseas.
Microsoft stores the contents of each user’s e‐mails, along with metadata related to the account and to the account’s e‐mail traffic, on a network of servers. One of Microsoft’s datacenters is in Ireland, where it is operated by a Microsoft subsidiary. The federal government sued Microsoft with a warrant looking for ESI relating to a DEA case. After being served with the warrant, Microsoft determined that the e‐mail contents stored in the account were located in its Ireland datacenter. Microsoft disclosed all the responsive information, which was kept within the United States, and moved for the magistrate judge to quash the warrant with respect to the user content stored in Ireland. The magistrate denied the motion.
When it passed the Stored Communications Act almost thirty years ago, Congress, under a very different technological landscape, extended the Act to apply privacy protections to electronic records similar to those guaranteed by the Fourth Amendment.
Microsoft argues that American law enforcement should not be able to access electronic information stored outside of the U.S., arguing that U.S. search warrants have no effect beyond the country’s borders. The company also argues that this could set a bad precedent, potentially putting American emails at risk of seizure by foreign governments. Microsoft appealed the District Court’s decision denying the motion to quash. The District Court held Microsoft in contempt for refusing to comply fully with the warrant.
The Justice Department argues that Microsoft is impeding a criminal investigation. It says it does not matter where the data is stored as long as it is accessible domestically. A lower court judge initially approved the government’s warrant, but the U.S. Court of Appeals for the Second Circuit reversed.
In oral arguments before the Supreme Court, counsel for Microsoft said the emails were physically housed in Ireland, so any access was subject to the laws and treaties between the US and Ireland. The Justices made the point that all the data was completely accessible in the United States with the push of a button. Chief Justice Roberts asked what was to stop any providers from storing emails and other data outside the US to tell its customers that the data would always be beyond the reach of the government.
Email data storage is an almost 250 billion dollar a year business, and some countries have already stated that they would cease using United States-based data services if the US Supreme Court decides to allow the overseas searches.