How Far Can Domestic Search Warrants Extend? The Second Circuit Will Soon Have the Answer for Microsoft

October 2, 2015

More often than not search warrants are not difficult to procure and execute.  However, in Microsoft Corporation v. United States of America, the United States government is potentially looking for something outside of its jurisdiction, and the Second Circuit must make a decision that will have international ramifications.
In December 2013, the Southern District of New York issued a domestic search warrant for the consumer emails of one Hotmail account.  The Department of Justice believes that these emails implicate its owner in a criminal narcotics scheme.  Microsoft refused to cooperate with the warrant, because the emails are stored in a server in Dublin, Ireland.  Microsoft immediately moved to quash the warrant, because the corporation argues that the government is seeking data outside of the United States.  How did the data end up in Ireland?  Microsoft stores foreign data in foreign countries.  In this instance, the user signed up for an account with a foreign country code different from the United States, but the government has not determined if the user is in fact in a different country.
On September 9, 2015, the Second Circuit heard the oral arguments.  Microsoft argued two themes.  The SCA (the Stored Communications Act, one of three titles of the Electronic Communications Privacy Act) does not apply, because it was never originally intended to be extraterritorial.  Further, this legislation is over thirty years old and is extremely outdated and cannot still be relevant considering technological advances.  Second, Joshua Rozenkranz, the lawyer who argued for Microsoft noted the “international firestorm” this would create for foreign policy.  He also argued that America would “go crazy” if China did this to the United States.  In fact, Microsoft’s brief articulated, “if the Government prevails here, the United States will have no grounds to complain when foreign agents—be they friend or foe—raid Microsoft offices in their jurisdictions and order them to download U.S. citizens’ private emails from computers located in this country.”
The Government countered these arguments by contending that the SCA and the ECPA are still valid, because they have withstood the test of time.  Although this seems flimsy, there may be validity in the SCA.  Microsoft is, after all, an American corporation, and the Department of Justice has the authority to issue a warrant for that information.  If, in fact, the user is a foreigner in a foreign country, this user will not be afforded the rights of the Fourth Amendment anyway.
Thus far, the lower courts have ruled in favor of the government but the implications of the decision by the Second Circuit could cause complications internationally.  Most concerns stem from the possibility the Second Circuit decides in favor of the government.  Other countries could replicate and implement the same policy on the United States.

Brad Smith, a Microsoft lawyer, stated that, “The US government cannot expect to have one model that it follows without anticipating that the rest of the world will follow that model.  And this is a model that encourages governments to reach into other territories. That does not seem like a sound approach to international stability or mutual respect in the 21st century.”

This policy could develop into a trend that may backfire.
What maybe the worst part about this is that there are other alternatives to solving this problem.  What about a subpoena?  What about MLAT (the mutual assistance in law enforcement treaty)?  Commentators have come to the conclusion that a warrant will be the fastest way for the government to retrieve the emails.  Subpoenas would take too much time, but why not MLAT?  This treaty was designed to ensure international cooperation for law enforcement.  Before the Second Circuit even heard oral arguments, “the government of Ireland filed an amicus brief, which is pretty unusual.  They said they stood ready to consider use of the treaty,” said Craig Newman of Patterson Belknap Webb & Tyler.
Clearly, this case could damper relations abroad, but regardless of the outcome, this will damage relations at home.  Verizon, Apple, Cisco, AT&T, and the Electronic Frontier Foundation all submitted amici briefs in support of Microsoft.  This creates more than a hostile environment for the DOJ. Seeing the different tech entities work together to oppose the DOJ’s attempts to strain the corporation’s international relationships reveals the nature of the beast.  The government’s continued use of these corporations, as a backdoor way to access consumer information, does not help.  It seems the holding in this case will be irrelevant because the damage is already done.  This case present issues that make Microsoft vulnerable and it will expose these vulnerabilities at the expense of protecting a potential drug operation.  Is it worth it?  Even though the grass is greener in Ireland, it might not be for Microsoft.