On June 23, 2017, the Office of the Solicitor General (OSG) filed a petition for a writ of certiorari with the United States Supreme Court requesting reversal of a 2016 decision in which the U.S. Court of Appeals for the Second Circuit quashed a warrant obtained by the Department of Justice (DOJ) under the Stored Communications Act (SCA) seeking the contents of a Microsoft customer’s emails.
In its July, 2016 decision in United States v. Microsoft Corp., a Second Circuit panel unanimously held that the DOJ’s attempt to procure the contents of the emails – which allegedly pertained to illegal drug trafficking – via an SCA warrant constituted an impermissible extraterritorial application of the SCA because the server on which the emails were stored was located in Ireland. The Second Circuit subsequently denied a request for an en banc rehearing in January, 2017 (see previous analysis of that denial here).
In its petition, the OSG expressly asserts that “the Second Circuit has seriously misinterpreted” the SCA in holding that enforcement of the warrant would constitute extraterritorial application of the SCA because Microsoft can access the information sought “domestically with the click of a computer mouse.” Therefore, according to the OSG, the compelled disclosure represents a domestic, not extraterritorial, application of the SCA. The OSG’s petition also notes that Microsoft stores the emails abroad “for its own business reasons,” and its users cannot control whether Microsoft transfers a user’s records into or out of the United States. The OSG thus rejects the position of the Second Circuit panel that the conduct compelled by the warrant (the disclosure of the email records) would take place abroad because Microsoft can transfer email records on its servers at will and without notice to, or recourse for, a user. The OSG further argues that an SCA disclosure warrant is akin to a subpoena, and the Second Circuit’s reasoning conflicts with the holdings of “numerous courts of appeal” that domestic recipients of subpoenas must produce specified materials within their control, even if the materials are stored abroad. The OSG’s petition concludes by asserting that the Second Circuit’s decision “gravely threatens public safety and national security.”
The position of the OSG in its petition appears to increase the likelihood that the U.S. Supreme Court will review the Second Circuit panel’s decision in this case, which could pave the way for a significant ruling on the application of the SCA in the digital age.