U.S. Supreme Court Agrees to Hear Microsoft Cloud Warrant Case

The U.S. Justice Department obtained a warrant for Microsoft to search its records for information about an msn.com e-mail customer of the company.  The Justice Department was able to establish probably cause that the customer was using the e-mail account for drug trafficking. A federal magistrate issued the warrant and, upon it service to Microsoft, Microsoft turned over the non-content information about the account to the Justice Department.  However, Microsoft determined that the content of the user’s account was stored in Microsoft facilities in Ireland and declined to provide that information from facilities outside the country. 

Microsoft moved to quash the subpoena with respect to the content in Ireland.  Microsoft argued that §2703 of the Stored Communications Act (SCA) (18 U.S.C. §§2701 et seq.) Congress used the term “warrant” under its definitions related to the privacy of users of stored communications (ie., e-mail files retained by the user).  In the Matter of Warrant to Search a Certain E-Mail Account Controlled and Maintained by Microsoft Corporation, 15 F. Supp. 3d 466 (S.D.N.Y. 2014). The government could not obtain such records of users without a valid warrant.  Traditionally, any warrant’s limitations are the borders of the United States.  A warrant issued by a U.S. court does not apply to property, records, etc. outside the United States.  Courts in other countries would have to make the determination of the validity of such a search; the United States’ courts’ findings of probably cause would not require recognition of the warrant in another country. Microsoft argued that allowing U.S. warrants to apply in other countries would mean that other countries could use their warrants on U.S. companies, subjected US companies to warrants not issued within the constitutional standards of the U.S.  Rather, the searches would be approved under different legal standards in other countries, thus subjecting the companies to issues of privacy, espionage, etc.  You can view a discussion of these issues by Microsoft’s chief legal counsel here.

The magistrate denied Microsoft’s motion to quash, and Microsoft appealed that decision to the federal district court. The chief judge for the federal district court held a hearing de novo and found for the government.  Microsoft appealed that decision.

 The Second Circuit Court of Appeals reversed the decision, and remanded the case with instructions for the magistrate to quash the warrant.  829 F.3d 197 (2nd Cir. 2016). The Justice Department appealed to the U.S. Supreme Court, and the court has granted certiorari. 2017 WL 2869958.  Thirty-three states have joined together as amicus curae, and have filed a brief in support of the Justice Department’s position. The states, along with the Justice Department, argue that investigations into everything from child pornography to fraud will be hampered. On the other hand, Microsoft argues that clarification of the law should come from Congress with changes to the statute and not through judicial second-guessing. Brad Smith, Microsoft’s general counsel says that the law was written in the era of floppy disks and needs to be updated. That update, he argues, requires input and information from tech companies, a process that Congress can use. Microsoft has argued that such a finding would hobble it in the international market because customers would seek companies that could guarantee privacy.

 DISCUSSION STARTERS

Explain what federal laws are involved in the case.

Discuss the pros and cons of the expansion of warrants to cover cloud information stored in other countries.