When Technology Laps the Law

The title of this post comes from the Washington Post’s June 10 piece on the same question: Can the United States assert worldwide jurisdiction over emails and other data that are housed in servers that are physically located abroad?

Here’s the backdrop: The government is conducting a drug-trafficking investigation, so it applies for a warrant that orders a suspect’s email provider, Microsoft, to disclose the contents of a specific email account, and the court grants it.

When the government serves the warrant, however, Microsoft does something unusual. It resists.

It moves to quash the warrant on the ground that it seeks information that is stored on Microsoft’s servers in Dublin, Ireland, which is beyond the government’s territorial jurisdiction. Microsoft argues that if the government wants the information, it should have to rely on the terms of the mutual-legal-assistance treaty (or MLAT) it already has in place with Ireland.

Not so, says the government, because a 1986 law called the Stored Communications Act allows it to compel the production of electronic records, wherever they’re stored, in three different ways: by subpoena, by warrant, or by another court order referred to as a 2703(d) order. See generally 18 U.S.C. § 2703. The government contends that since Microsoft, which is subject to U.S. jurisdiction, must generally respond to valid subpoenas by producing its business records wherever it stores them, the same logic should apply to a warrant issued under the statute. Neither the warrant in question nor the statute requires a physical search, anyway, so it’s not like federal agents were going to break into the Dublin facility.

But this isn’t a subpoena, answers Microsoft; it’s a warrant, and it’s an extraterritorial warrant at that. The government’s jurisdiction should end where Irish sovereignty (and data-protection laws) may begin.

Not really, replies the government; it’s more of a hybrid warrant-subpoena, actually. So there.

Who wins? We will see. The magistrate judge that originally granted the warrant denied Microsoft’s motion to quash it, and the company has appealed that ruling to the district judge. The government filed its opposition brief on July 9, Microsoft’s reply brief is due July 24, and oral argument is set for July 31.

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