Federal law enforcement search warrant powers extended to emails stored abroad under the “Stored Communications Act”
In a recent United States District Court decision in Manhattan, District Court Judge Loretta A. Preska approved the issuance of a sealed search warrant on behalf of U.S. law enforcement agencies for a consumer email account hosted by Microsoft and stored in Dublin, Ireland. The purpose of the warrant was to seek information relating to a narcotic’s investigation.
Microsoft was joined in its objection to the search warrant by a number of tech giants including Apple, Inc., Cisco Systems, Inc., Verizon Communications, Inc. and AT&T, Inc.
Microsoft claimed that the issuance of this sealed search warrant for execution in Dublin, Ireland, amounted to an unlawful extension of United States law enforcement authority in another country, citing the constitutional protections from unreasonable searches and seizures guaranteed by the Fourth Amendment. Attorneys for Microsoft argued “a U.S. prosecutor cannot obtain a U.S. warrant to search someone’s home located in another country, just as another country’s prosecutor cannot obtain a court order in her home country to conduct a search in the United States,” . . . “We think the same rules should apply in the online world, but the government disagrees.” Microsoft also argued that serving a U.S. warrant overseas could infringe upon other nations sovereignty damaging foreign relations with the United States.
Microsoft also stated that it provides customers with cloud services and stores data including email, calender entries and scanned documents in more than 100 foreign countries.
This case demonstrates the tension between individual privacy rights under the Fourth Amendment and the ever increasing reach of the federal government to override those privacy interests in the name of law enforcement.
Microsoft’s general counsel, said it would “assert available jurisdictional objections to legal demands when governments seek this type of customer content that is stored in another country.”
The district court focused on the question of who controlled the data subject to the search warrant rather than the location where the information was stored. While the district court agreed that “traditional” search warrants do not extend overseas, the court found that the “traditional” limits did not apply to warrants seeking digital content, since they were governed by a federal law called the “Stored Communications Act.” The court further noted that a search warrant seeking email and other digital information is similar to a subpoena for documents. The law has traditionally required a recipient of a subpoena to provide the information sought, no matter where it is held.
If you or a family member is subject to a subpoena or search warrant for electronic data that is stored in cloud services, Mr. Dirmann would be delighted to speak with you and discuss your legal rights.