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In February the U.S Supreme Court heard oral arguments in United States v. MicrosoftAt issue is Microsoft’s challenge to a warrant issued by a U.S. court directing it to produce emails stored in Ireland. With implications for government investigations, privacy law, and multi-national tech companies’ ability to compete globally, the case has attracted significant attention.

Over the course of the oral arguments it became clear that rendering a decision in United States v. Microsoft would require the justices to choose between two less-than-satisfactory outcomes: denying the U.S. government access to necessary information, or potentially harming U.S. technology companies’ ability to operate globally.

The conundrum the justices face is largely due to the fact that the 1986 law at issue, the Stored Communications Act (SCA), never envisioned the kind of complex, cross-border data storage practices of today.

Find out more about the case and how recently introduced legislation known as the CLOUD Act could wind up superseding the Court’s decision in United States v. Microsoft by, among other things, clarifying the SCA’s applicability to foreign-stored data while also providing technology companies with a new vehicle for challenging certain orders that conflict with the laws of the country where data is stored.

Read my article in Wired.

The U.S. Supreme Court on Oct. 16, 2017, announced it had granted the government’s petition for certiorari in United States v. Microsoft and will hear a case this Term that could have lasting implications for how technology companies interact with the U.S government and governments overseas. At issue is a consequential Second Circuit decision from last year that held that warrants issued under the Stored Communications Act (SCA) do not reach emails and other user data stored overseas by a U.S. provider.

While no federal appellate court besides the Second Circuit has squarely addressed the issue, multiple district courts outside the Second Circuit have declined to follow the Second Circuit’s reasoning in similar fact patterns involving other technology giants. The result is that U.S. law enforcement has different authority to access foreign-stored user data depending on where in the United States a warrant application is made. Google, for example, has expended significant resources to develop new tools to determine the geographic location of its users’ data so as to be in accord with the Second Circuit’s approach. Yet the company currently faces a hearing on sanctions for its alleged willful noncompliance with law enforcement requests in the Ninth Circuit based on a district court ruling that parted ways with the Second Circuit.

Continue Reading SCOTUS to Resolve Lower-Court Dispute Over U.S. Warrants Seeking Foreign-Stored User Data

GettyImages-520390753-600pxThe U.S. Department of Justice (DOJ) recently secured a notable victory against Google in a dispute over the enforceability of a U.S. search warrant seeking access to foreign-stored account data.

The April 19 ruling—from Magistrate Judge Beeler in the U.S. District Court for the Northern District of California—is the latest sign that DOJ is continuing to rely on the Stored Communication Act (SCA) to seek overseas account data even after the Department’s high profile defeat in the Second Circuit’s ruling in the Microsoft case.

And the opinion suggests that DOJ’s litigation strategy may be working.

The dispute arose after DOJ obtained a search warrant last year under the SCA directing Google to provide information related to specified Google user accounts. Google withheld some of the requested information and challenged the request. Google explained that it relies on algorithms to move user data around the world automatically to aid in network efficiency. Invoking the Second Circuit’s Microsoft ruling, which rejected DOJ’s efforts to obtain content stored on Microsoft servers in Ireland, Google argued that some of the requested data was stored exclusively overseas and therefore beyond the purview of an SCA warrant. Continue Reading Court Orders Google to Turn Over Foreign-Stored Data