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Deadlocked 2nd Cir Denies En Banc Rehearing in Overseas Data Case

By Casey C. Sullivan, Esq. on January 26, 2017 6:02 AM

Last summer, a three-judge Second Circuit panel ruled that the U.S. government could not force Microsoft to turn over email data stored on overseas servers. They rejected the government's warrant, issued pursuant to the Stored Communications Act, finding that the act had no extraterritorial reach. It was a landmark ruling, one praised by business and privacy advocates and condemned by those who viewed it as hamstringing criminal investigations.

That opinion will stand, for now. On Tuesday, the Second Circuit deadlocked 4-4 on whether to rehear the case en banc, effectively denying any rehearing -- and resulting in four separate dissents.

Warrants for Emails in Ireland

The Second Circuit's July ruling came after the federal government issued a warrant for email information held by Microsoft. That information, wanted for an investigation into drug trafficking, was stored on the company's Dublin, Ireland servers.

Microsoft refused to provide the info, arguing that the federal government had no right to seize electronic information stored beyond its borders. When the case made it to the Second Circuit, a three-judge panel agreed.

"Congress did not intend the SCA's warrant provisions to apply extraterritorially," Judge Susan Carney wrote for the court. "The focus of those provisions is protection of a user's privacy interest."

The Department of Justice sought en banc review, but was unable to get the necessary fifth vote needed to rehear the case.

Dissent, Dissent, Dissent, Dissent

That failure to grant review led to four separate dissents, one from each dissenting judge. Judge Dennis Jacobs argued that, while all agreed that the SCA did not have extraterritorial reach, "no extra territorial reach is needed to require delivery in the United States of the information sought, which is easily accessible in the United States at a computer terminal."

"Extraterritoriality need not be fussed over when the information sought is already within the grasp of a domestic entity served with a warrant," Jacobs wrote.

Judge Jose A. Cabranes, in his dissent, described the panel's ruling as an unprecedented restriction on law enforcement. "To top this off," he wrote, "the panel majority's decision does not serve any serious, legitimate, or substantial privacy interest," while having far-reaching, negative consequences.

Dissents by Judges Reena Raggi and Christopher F. Droney echoed similar concerns.

Given the division on the Second Circuit, and the opinion's intersection with criminal and international law, it's possible that the case could make its way to the Supreme Court yet. The Department of Justice has said that it is still reviewing the case and will decide in the future whether to petition for cert.

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