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Microsoft Doesn't Have to Turn Over Emails on Foreign Servers

By Jonathan R. Tung, Esq. on July 15, 2016 | Last updated on March 21, 2019

The U.S. government cannot not legally compel Microsoft to hand over customer emails stored in Irish servers under the Stored Communications Act, the Second Circuit ruled yesterday. It's a major win for both tech and for privacy advocates.

It is believed that Microsoft is the first company to challenge a domestic search warrant over data held in another country, according to Reuters.

Department of Justice Bites the Dust

The Second Circuit unanimously ruled 3-0 in favor Microsoft, agreeing that the Department of Justice overstepped its authority when it tried to compel the software company to hand customer email records that were stored overseas in Dublin, Ireland. Authoring Judge Susan Carney said that the customer communications held by any U.S. service provider on servers located beyond the territorial United States fell outside of the reach of domestic search warrants issued under the Stored Communications Act of 1986.

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

Interested Parties

This case had technology companies all around the country holding their breath with a number of them taking the initiative to file amicus briefs. Verizon, Amazon, Apple, Cisco -- all supported Microsoft's position that the DOJ's actions were unlawful. And of course, how could we forget the Electronic Frontier Foundation?

Fear had spread amongst companies that a negative ruling would be bad for business. Privacy advocates feared a "free for all" on domestic citizens' privacy rights, should Microsoft lose.

Turning to Comity

Judge Carney noted in her opinion that when it comes to international criminal investigations, limiting the invasive power of the search warrant best serves "the interests of comity." Her opinion intimated that the preferred instrument for moving an international criminal investigation forward would be international treaties. But the DOJ will no doubt fire back that such channels are encumbered by protocol and politics.

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