We’ve written several times about the landmark dispute between the U.S. government and Microsoft Corp. over access to a customer’s emails stored in Ireland. Now, a month after the U.S. Supreme Court heard oral argument on the government’s appeal, the Justice Department has asked the Court to remand the case to the U.S. Court of Appeals for the Second Circuit with instructions to dismiss it as moot.

The Microsoft case started in December 2013, when U.S. law enforcement officials served a warrant issued under the Stored Communications Act (the “SCA”) on Microsoft to turn over email content associated with an unnamed user’s msn.com account. Microsoft turned over the customer’s “address book,” which was stored on U.S. servers, but moved to quash the warrant with respect to the contents of the customer’s emails, which were stored on a server in Ireland. Microsoft argued that, in order to access customer emails and records stored on Irish servers, the government should have to pursue traditional bilateral law enforcement and diplomatic channels such as the Mutual Legal Assistance Treaties.

Microsoft lost before a magistrate and district court judge but prevailed on its appeal to the Second Circuit. The panel held that, because Congress did not intend the SCA’s warrant provision to apply extraterritorially, emails stored on the server in Ireland were off limits. The full Second Circuit later denied rehearing en banc in a 4–4 ruling.

The Supreme Court heard oral argument in the case on February 27, 2018, and a decision is expected in the coming months. During the arguments, however, several Justices asked why the Court shouldn’t wait for Congress to resolve the issue.

The basis for the government’s motion is the newly enacted Clarifying Lawful Overseas Use of Data Act or the “CLOUD” Act. It was included as part of the recent omnibus spending bill, which Congress passed and the President signed on March 23, 2018. The CLOUD Act amends the SCA to state that an Internet service provider “shall comply with the obligations of this chapter to preserve, backup, or disclose the contents of a wire or electronic communication and any record or other information pertaining to a customer or subscriber within such provider’s possession, custody, or control, regardless of whether such communication, record, or other information is located within or outside of the United States.”

The CLOUD Act also contains provision for a “comity” analysis in the event a warrant seeks information that, if handed over, would violate the laws of another country.

While the government argues that the Act should be applied to the original warrant in this case, its motion notes that Microsoft disagrees.  To cover all bases, the government sought and obtained a new warrant requesting the same information on March 30, 2018. 

The government contends that passage of the CLOUD Act has mooted this case.  It argues that the Supreme Court should remand to the Second Circuit with instructions to dismiss the case. The government argues that, although this particular dispute is now moot, the Second Circuit’s decision should still be vacated because otherwise it could remain as precedent and cause “uncertainty” in other litigation.

The government’s brief can be read here.  We expect Microsoft to respond to the government’s motion in the coming days.  As always, we’ll keep an eye on this case.