Second Circuit Limits Use of Warrants to Secure Electronic Data Stored Abroad

Privacy & White Collar Update

Date: July 15, 2016

In a closely watched case, the United States Court of Appeals for the Second Circuit ruled that the government may not use a warrant issued under the Stored Communications Act to obtain the production of emails maintained on a server located abroad. In Microsoft Corporation v. U.S., Docket No. 14-2985 (2d Cir. July 14, 2016), the court considered a warrant issued to Microsoft under the Stored Communications Act, 18 U.S.C. § 2703, seeking to compel disclosure of the contents of a customer’s emails that were maintained on a server in Dublin, Ireland and not separately stored within the United States.

The United States District Court for the Southern District of New York had refused Microsoft’s request to quash the warrant and held Microsoft in civil contempt for refusing to turn over emails from a Microsoft Outlook user’s account pursuant to that warrant. A three-judge panel of the Second Circuit vacated the finding of civil contempt and remanded the case to the District Court with instructions to quash the warrant.

The basic facts in the case were not in dispute. The emails in question were stored exclusively on a server maintained by a Microsoft subsidiary in Dublin. The emails could be accessed domestically, however, by retrieving them and importing them electronically into the United States. The government sought the emails under the warrant provisions of the Stored Communications Act.

In rejecting the use of the warrant for the emails, the Second Circuit also observed that “[n]either explicitly nor implicitly does the statute envision the application of its warrant provisions overseas.” Thus, the “application of the Act that the government proposes – interpreting ‘warrant’ to require a service provider to retrieve material from beyond the borders of the United States would require us to disregard the presumption against extraterritoriality” stressed in recent U.S. Supreme Court opinions.

The case introduces important limitations under the Stored Communications Act regarding access to data stored exclusively on servers overseas. A large number of technology companies and industry associations filed amicus curiae briefs in the Court of Appeals in support of Microsoft.


For more information, please contact:

Maranda E. Fritz

Roy E. Hadley, Jr.

John L. Watkins

Thomas F. Zych

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