{"id":3648,"date":"2015-10-02T12:01:15","date_gmt":"2015-10-02T16:01:15","guid":{"rendered":"http:\/\/ncjolt.org\/?p=3648"},"modified":"2020-06-04T20:53:34","modified_gmt":"2020-06-04T20:53:34","slug":"how-far-can-domestic-search-warrants-extend-the-second-circuit-will-soon-have-the-answer-for-microsoft","status":"publish","type":"post","link":"https:\/\/journals.law.unc.edu\/ncjolt\/blogs\/how-far-can-domestic-search-warrants-extend-the-second-circuit-will-soon-have-the-answer-for-microsoft\/","title":{"rendered":"How Far Can Domestic Search Warrants Extend? The Second Circuit Will Soon Have the Answer for Microsoft"},"content":{"rendered":"

More often than not search warrants are not difficult to procure and execute.\u00a0 However, in Microsoft Corporation v. United States of America<\/em>, 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.
\nIn December 2013, the Southern District of New York issued a domestic search warrant for the consumer emails of one Hotmail account.\u00a0 The Department of Justice believes that these emails implicate its owner in a criminal narcotics<\/a> scheme.\u00a0 Microsoft refused to cooperate with the warrant, because the emails are stored in a server in Dublin, Ireland.\u00a0 Microsoft immediately moved to quash the warrant, because the corporation argues that the government is seeking data outside of the United States.\u00a0 How did the data end up in Ireland?\u00a0 Microsoft stores foreign data in foreign countries<\/a>.\u00a0 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.
\nOn September 9, 2015, the Second Circuit heard the oral arguments.\u00a0 Microsoft argued two themes.<\/a>\u00a0 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originally intended to be extraterritorial.\u00a0 Further, this legislation is over thirty years old and is extremely outdated and cannot still be relevant considering technological advances.\u00a0 Second, Joshua Rozenkranz, the lawyer who argued for Microsoft noted the \u201cinternational firestorm\u201d this would create for foreign policy.\u00a0 He also argued that America would \u201cgo crazy<\/a>\u201d if China did this to the United States.\u00a0 In fact, Microsoft\u2019s brief articulated, \u201cif the Government prevails here, the United States will have no grounds to complain when foreign agents\u2014be they friend or foe\u2014raid Microsoft offices in their jurisdictions and order them to download U.S. citizens\u2019 private emails from computers located in this country<\/a>.\u201d
\nThe Government countered these arguments by contending that the SCA and the ECPA are still valid, because they have withstood the test of time.\u00a0 Although this seems flimsy, there may be validity in the SCA.\u00a0 Microsoft is, after all, an American corporation, and the Department of Justice has the authority to issue a warrant for that information.\u00a0 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.<\/a>
\nThus 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.\u00a0 Most concerns stem from the possibility the Second Circuit decides in favor of the government.\u00a0 Other countries could replicate and implement the same policy on the United States.<\/p>\n

Brad Smith, a Microsoft lawyer, stated that, \u201cThe US government cannot expect to have one model that it follows without anticipating that the rest of the world will follow that model.\u00a0 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<\/a>.\u201d<\/p><\/blockquote>\n

This policy could develop into a trend that may backfire.
\nWhat maybe the worst part about this is that there are other alternatives to solving this problem.\u00a0 What about a subpoena?\u00a0 What about MLAT (the mutual assistance in law enforcement treaty)?\u00a0 Commentators have come to the conclusion that a warrant will be the fastest way for the government to retrieve the emails.\u00a0 Subpoenas would take too much time, but why not MLAT?\u00a0 This treaty was designed to ensure international cooperation for law enforcement.\u00a0 Before the Second Circuit even heard oral arguments, \u201cthe government of Ireland filed an amicus brief, which is pretty unusual.\u00a0 They said they stood ready to consider use of the treaty<\/a>,\u201d said Craig Newman of Patterson Belknap Webb & Tyler.
\nClearly, this case could damper relations abroad, but regardless of the outcome, this will damage relations at home.\u00a0 Verizon, Apple, Cisco, AT&T, and the Electronic Frontier Foundation<\/a> all submitted amici briefs in support of Microsoft.\u00a0 This creates more than a hostile environment for the DOJ. Seeing the different tech entities work together to oppose the DOJ\u2019s attempts to strain the corporation\u2019s international relationships reveals the nature of the beast.\u00a0 The government\u2019s continued use of these corporations, as a backdoor way to access consumer information, does not help.\u00a0 It seems the holding in this case will be irrelevant because the damage is already done.\u00a0 This case present issues that make Microsoft vulnerable and it will expose these vulnerabilities at the expense of protecting a potential drug operation.\u00a0 Is it worth it?\u00a0 Even though the grass is greener in Ireland, it might not be for Microsoft.<\/p>\n","protected":false},"excerpt":{"rendered":"

More often than not search warrants are not difficult to procure and execute.\u00a0 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 …<\/a><\/p>\n","protected":false},"author":1,"featured_media":3649,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":[],"categories":[51],"tags":[],"_links":{"self":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/3648"}],"collection":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/comments?post=3648"}],"version-history":[{"count":1,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/3648\/revisions"}],"predecessor-version":[{"id":7294,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/3648\/revisions\/7294"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/media\/3649"}],"wp:attachment":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/media?parent=3648"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/categories?post=3648"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/tags?post=3648"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}