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US Department of Justice Appeals Microsoft Decision to US Supreme Court

November 3, 2016


The US Department of Justice (DoJ) has appealed to the US Supreme Court the decision of the US Court of Appeals for the Second Circuit (the “Court of Appeals”) to quash a warrant seeking the disclosure of user content stored in Ireland. The warrant directed Microsoft to seize and produce the contents of a customer’s e-mail account.

The case relates to a number of emails stored on servers in Ireland and has significant implications for the technology industry in Europe.

Last July, in a landmark ruling, (as reported here), the Court of Appeals ruled in favour of Microsoft, holding that it need not turn over the emails in question. The court focused on the “strong and binding” presumption against extra-territoriality of legislation.

In filing for the appeal to the US Supreme Court, the DoJ has claimed that the Court of Appeals misinterpreted the law as to when companies are obliged to disclose data stored on servers in foreign jurisdictions.

The Court of Appeals ruled that in order to rebut the presumption against extra-territoriality of legislation, the statute under which the warrant was issued (the Stored Communications Act) would have to contain an “affirmative indication” of an intention to apply outside the US.  The court determined that enforcement of the warrant constituted an unlawful extra-territorial application of the Stored Communications Act.

In order to update the legal framework to deal with international matters such as those that arise in this case, US lawmakers have sought engagement from the DoJ in fine-tuning the International Communications Privacy Act (ICPA) which seeks to provide mechanisms for US law enforcement to obtain electronic communications stored on foreign servers.

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Contributed by David Cullen