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 to get a suspect’s email provider, Microsoft, to disclose the contents of a specific email account. The court grants it.

But when the government serves the warrant, Microsoft does something unusual. It resists.

It moves to quash the warrant because it seeks information that’s stored on Microsoft’s servers in Dublin, Ireland, beyond the government’s territorial jurisdiction. Microsoft says that if the government wants the information, it should have to rely on the mutual-legal-assistance treaty (or MLAT) it already has 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 says 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. Besides, neither the warrant in question nor the statute requires a physical search, so it’s not like federal agents were going to break into the Dublin facility.

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