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SCOTUS will decide whether Microsoft has to provide emails sought under warrant when the emails are stored overseas

United States v. Microsoft Corp., USSC No. 17-2, certiorari granted 10/16/17

Question presented:

Whether a United States provider of email services must comply with a probable-cause-based warrant issued under 18 U.S.C. § 2703 by making disclosure in the United States of electronic communications within that provider’s control, even if the provider has decided to store that material abroad.

Decision below: Microsoft Corp. v. United States, 829 F.3d 197 (2d Cir. 2016)

USSC Docket

Scotusblog page (including links to cert petition and responses; briefs; and commentary)

The government obtained a warrant under 18 U.S.C. §§ 2701-2712, commonly known as the Stored Communications Act (SCA), to get Microsoft to disclose information about a specific email account the government believed was being used to facilitate drug trafficking. Microsoft refused to hand over the contents of the emails in the account claiming that, because the emails were stored overseas, the SCA did not apply to them. The Second Circuit Court of Appeals agreed and held enforcing the warrant would be an impermissible extraterritorial application of § 2703.

The government petitioned, aghast that it cannot require a U.S. internet service provider to disclose information that the provider, for its own business reasons, has stored abroad, and asserting the decision is causing “immediate, grave, and ongoing harm to public safety, national security, and the enforcement of our laws” because “hundreds if not thousands of investigations of crimes—ranging from terrorism, to child pornography, to fraud—are being or will be hampered by the government’s inability to obtain electronic evidence.” (Certiorari petition at 12-13). The Court accepted the case despite the absence of a circuit split, which goes to show the Court thinks the issue is important and in need of quick resolution.

While the Court’s decision will bear most directly on federal criminal practice, it could have some effect on Wisconsin practice, too. We adopted a statute, § 968.375, that is based in part on the SCA, and our courts will likely look to federal courts’ application of the SCA when addressing issues that arise under that statute.

UPDATE: The case was dismissed as moot on April 17, 2018.

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