In Depth: United States v. Microsoft

On Tuesday, February 27th, the Supreme Court will hear oral arguments in United States v. Microsoft Corporation, a case that has garnered worldwide attention. Amicus briefs have been filed by the European Commission on behalf of the European Union, the government of the United Kingdom, and multiple interest groups. The case centers around Microsoft’s web-based email service, According to Microsoft’s website, more than 400 million people are users of this service, and their email data is saved on data centers located around the world. The Supreme Court will decide whether the Stored Communications Act mandates that Microsoft, and similar providers, when served with a warrant must provide this data to the United States government even when it is stored outside of the country.

As the Second Circuit noted in its decision in this case, Microsoft’s internal system determines where a user’s data should be stored. The data at issue was automatically transferred to the data center in Dublin, Ireland, and Microsoft could access it only from there. In 2013, Microsoft was served with a search and seizure warrant for email stored in Dublin. (The warrant was issued pursuant to probable cause to believe the account was being used in connection with narcotics trafficking.) Microsoft was served at its Redmond, Washington headquarters, and it Microsoft moved to quash the warrant under the Stored Communications Act (“SCA”). The motion  was denied by the United States District Court for the Southern District of New York, which then held Microsoft in civil contempt. The case was then appealed to the Court of Appeals for the Second Circuit .

In the Second Circuit, Microsoft argued that warrants carry territorial limitations and are not enforceable with respect to items located outside the United States. The government argued that warrants compel those served to release the information in their control regardless of where it is stored. The Second Circuit agreed with Microsoft, stating that Congress’s aim in passing the SCA was to protect user privacy and that the term “warrant” in the Act requires “pre-disclosure scrutiny by a neutral third party, … afford[ing] heightened privacy protection in the United States.” The Second Circuit further stated that interpreting “warrant” to require production of material held overseas would require the court to “disregard the presumption against extraterritoriality that the Supreme Court re-stated and emphasized in Morrision v. National Australian Bank Ltd., and even more recently in  RJR Nabisco v. The European Community.”

Although its amicus brief was filed “in support of neither party,” the United Kingdom’s government appears to primarily support the U.S. in this case. Its brief stated:

The Second Circuit decision disrupts the U.K.’s ability to use the existing U.K.-U.S. Mutual Legal Assistance Treaty (“MLAT”) in order to obtain relevant electronic communications from any U.S.-based provider of electronic communications services in the United Kingdom when the provider has stored the relevant communications outside the United States, as is frequently the case.

The European Union’s brief implores the Supreme Court to “consider EU domestic law as it pertains to searches of data stored in the European Union.” It further stated that any domestic law (whether American or EU law) creating cross-border obligations “should be applied an interpreted in a manner that is mindful of the restrictions of international law and considerations of international comity.”

Robert Barnes of the Washington Post noted that thirty-three U.S. states also submitted an amicus brief. The states argue that “the Court of Appeals’ remarkable conclusion that a private company has unfettered discretion to shield evidence of crime from law enforcement – simply by electronically sending that evidence out of the jurisdiction – is mistaken and should be reversed.”

On the other hand, technology giants Amazon, Facebook, Google, and Verizon filed an amicus brief in of Microsoft. Erin Fuchs of Yahoo Finance reported that the companies want to make sure their customers’ privacy is protected, and further argue that enforcing the warrants could open up U.S. data to foreign governments.  Ilya Shapiro of The Cato Institute argues in The Federalist that this case has “tremendous implications for everyone who uses the Internet to store data,” and believes the Second Circuit held the right decision.

Stay tuned to ISCOTUSnow for updates on this case and all things SCOTUS.

This post was written by ISCOTUS Fellow Matthew Webber, Chicago-Kent Class of 2019, edited by ISCOTUS Editorial Coordinator Anna Jirschele, Chicago-Kent Class of 2018, and overseen by ISCOTUS Co-Director and Chicago-Kent faculty member Carolyn Shapiro.


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