On April 25, a federal magistrate judge ruled that Microsoft must disclose to U.S. federal investigators the contents of a customer’s email account stored outside of the United States. Microsoft had previously complied with portions of a search warrant seeking certain other information related to the targeted email account, but the company moved to quash the warrant with respect to the production of customer emails stored in Dublin, Ireland. In a 26-page memorandum and order, Judge James C. Francis IV (Southern District of New York) rejected Microsoft’s arguments and held that the enforcement of the warrant with respect to the Irish emails was not an improper application of U.S. law outside of American territory.
Federal investigators had previously applied for and obtained the search warrant for the emails under the federal Stored Communications Act (“SCA”). In rejecting Microsoft’s motion to quash, Judge Francis suggested that warrants issued under the SCA have a unique “hybrid” nature, “part search warrant and part subpoena.” Judge Francis reasoned that the SCA warrant
is obtained like a search warrant when an application is made to a neutral magistrate who issues the order only upon a showing of probable cause. On the other hand, it is executed like a subpoena in that it is served on the ISP in possession of the information and does not involve government agents entering the premises of the ISP to search its servers and seize the e-mail account in question.
Judge Francis’s opinion distinguished SCA warrants from “conventional warrants” involving wiretaps or physical searches.
Based on the comparison of SCA warrants to subpoenas, the court held that rules governing the use of subpoenas should control the extra-territorial enforcement of SCA warrants. Judge Francis wrote that “[i]t has long been the law that a subpoena requires the recipient to produce information in its possession, custody, or control regardless of the location of that information.”
The court’s opinion also expressed concern for the “substantial” practical burden that would be faced by government investigators if SCA warrants were deemed unenforceable outside the United States. The court also emphasized the fact that Microsoft administrators could access the required email content from the United States, and were not obligated to act in Ireland.
Microsoft has announced that it will challenge and appeal the decision, citing a concern to uphold privacy commitments to its customers.
Written by Michael Young, Associate, Technology and Privacy Group | Alston & Bird LLP