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US Supreme Court to Decide Warrant Issue for Email Stored on Foreign Servers

In United States v. Microsoft, the Second Circuit Court of Appeals held that § 2703 of the Stored Communications Act  (the "SCA") does not authorize courts to issue and enforce against U.S.‐based service providers warrants for the seizure of customer e‐mail content that is stored exclusively on foreign servers.

The Second Circuit Court concluded that:

a) Congress did not intend the SCA’s warrant provisions to apply extraterritorially; b) the focus of those provisions is protection of a user’s privacy interests; and c) the SCA does not authorize a U.S. court to issue and enforce an SCA warrant against a United States‐based service provider for the contents of a customer’s electronic communications stored on servers located outside the United States.

As a result, the Court held that the SCA warrant in the case could not lawfully be used to compel Microsoft to produce to the government the contents of a customer’s e‐mail account stored exclusively in Ireland. 

The US Supreme Court will hear the case and decide the following issue:

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.

Argument has not been scheduled.

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