Microsoft Ordered To Produce User Data Stored in Ireland: Plans to Appeal

Published On April 30, 2014 | By Marc Zwillinger | General, International

Ireland by NASA Goddard Space Flight CenterA federal magistrate in the Southern District of New York required Microsoft to produce user data in a search warrant even though the data was stored in Dublin, Ireland. If affirmed by the district court the magistrate’s decision could require U.S. companies to produce documents stored anywhere worldwide without reference to any valid local processes.

In this case, the underlying warrant sought the contents of email communications stored in a Microsoft subscriber’s account. However, Microsoft did not produce the records and instead moved to quash the warrant, arguing that the federal magistrate did not have authority to compel the production of information stored abroad.

The magistrate recognized that federal courts do not have the authority to issue warrants for search and seizure of property outside the U.S. under Rule 41 of the Federal Rules of Criminal Procedure, but concluded that the Stored Communications Act (“SCA”) authorizes search warrants even if the warrants call for the production of the contents of communications stored abroad.  The magistrate determined that under the SCA, the “search” does not take place in the jurisdiction where the records are stored but rather where the records are disclosed to the government. Other practical considerations that motivated the magistrate’s interpretation of the SCA included that; (1) Criminals could avoid U.S. legal process by claiming they are residents of other countries, causing ISPs to store records related to their accounts in foreign jurisdictions; (2) The MLAT process is slow and can prevent the government from obtaining the records it seeks; (3) Many countries have not entered into MLAT agreements with the U.S;  (4) ISPs could establish “offshore” servers outside the territorial jurisdiction of any nation.

The magistrate’s decision is narrower than it appears, and its implications are limited to cases where a U.S. entity has possession and control of foreign records which are reasonably accessible from the U.S. Accordingly, the decision did not address how an SCA warrant would apply to records stored abroad in the possession of a foreign subsidiary or affiliate company or when an intracompany agreement would prohibit the U.S. entity from accessing the records.

Microsoft has announced that they plan to appeal.

 

About The Author

Marc is the founder and managing member of ZwillGen PLLC and has been regularly providing advice and counsel on issues related to the increasingly complex laws governing Internet practices, including issues related to Electronic Communications Privacy Act (“ECPA”), the Wiretap and Communication Acts, privacy, CAN-SPAM, FISA, spyware, adware, Internet gambling and adult-oriented content. He also helps Internet Service Providers and other clients comply with their compliance obligations pertaining to the discovery and disclosure of customer and subscriber information.

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