Monday, February 19, 2018

Cross-border data and the contours of law enforcement's reach

As you’ve likely seen if not already digested, there has been substantial chatter lately regarding United States v. Microsoft (also known as “the Microsoft Ireland case”), which is scheduled for oral argument before the Supreme Court next week. If you’ve fallen behind, discourse on this case may be found here, here, and here.

To quickly summarize, in 2013, under the Stored Communications Act (SCA), the U.S. government sought a warrant to seize from Microsoft the contents of a customer’s email account that the government believed was being used for drug trafficking in or into the United States. Microsoft turned over data stored in the United States (including the address book linked to the email account), but moved to quash the search warrant to the extent that the warrant directed Microsoft to produce content stored on a server located in Ireland. The district court denied the motion to quash, but the Second Circuit reversed, vacated, and remanded the matter, finding that the district court lacked the authority to enforce the warrant against Microsoft given that the SCA “[n]either explicitly or implicitly” envisions “the application of its warrant provisions overseas.”

Image result for global reachOn February 27, the Supreme Court will hear oral arguments to address whether federal courts have the authority under the SCA to issue warrants for the search and seizure of foreign-stored data, and whether the presumption against extraterritoriality and the concomitant interests of the international community, for example, forbid such action.
Aside from the permissible scope of the SCA, the arguments and authorities presented by the parties—and those found within the 23 amicus briefs—as well as the ultimate decision in this case, may prove relevant for challenging warrants seeking electronically-stored information (ESI) from unknown locations under the recently amended Rule 41 (which we have previously blogged about here). We know that much of the impetus behind Rule 41’s changes regarding searches for ESI derived from the government’s inability to establish the location of a target, placing a search and seizure outside the scope of Rule 41’s then-jurisdictional limitations (not to mention the Fourth Amendment’s particularity requirements). Rule 41 now purports to authorize a magistrate or district court judge to issue a warrant that permits law enforcement to use remote access to search and seize electronic storage media located outside the judge’s district.

But may a judge do so knowing that the government is undoubtedly seeking authorization to search and seize electronic data located not only outside of its district, but also outside of the United States? Rule 41, as amended, does not explicitly address the international conundrum, and given that it was passed under the guise of a procedural rule change, it is lacking any delicate balancing of competing interests by Congress.

Moreover, the subcommittee notes attached to Rule 41’s amendment submitted by the Judicial Conference (the policy-making arm of the federal judiciary) readily acknowledges that the “[t]he amendment [to Rule 41] does not address constitutional questions, such as the specificity of description that the Fourth Amendment may require . . . leaving the application of this and other constitutional standards to ongoing case law development.”

Microsoft will not answer all questions about law enforcement’s international reach, but it hopefully will provide us with at least some insight into the High Court’s thinking in this complex area of search-and-seizure law.

No comments:

Post a Comment

Note: Only a member of this blog may post a comment.