A Data Privacy Question that Borders on Reach

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Location, Location, Location. While it is often used to describe a key to selling real estate, the location of a server may be just as important.  The United States Supreme Court heard arguments on February 27, 2018, on whether the provider of email services, Microsoft, must provide electronic communications stored outside the United States in satisfaction with a probable-cause-based warrant.  In United States v. Microsoft Corp.  the question is not whether Microsoft has the emails, but whether  the emails are outside the jurisdiction of the warrant when servers holding such emails  are not located within the United States.

While Microsoft agreed to provide all information within the United States it would not provide emails which were stored outside the United States, Ireland.  Microsoft argues that emails stored outside the United States, even when accessible from its United States offices, are not subject to the warrant as part of the Stored Communications Act of 1986.  Microsoft, along with other interested parties submitting papers to the Supreme Court, argue that if the United States succeeds that it, or other companies in the future, may be placed in a position of complying with a warrant in the United States but violating other nation’s privacy laws or complying with other nation’s privacy laws and being in contempt of a warrant.

The United States argues that the emails at issue were sent from the United States and are within the control of Microsoft which is located in the United States regardless of the location of the server storing the emails at issue.  Further, The United States argues that other nations take the same position as the United States so that the chances of a conflict of international laws are overstated by Microsoft while frustrating a valid law-enforcement action (in this instance drug trafficking) and providing email servicers with an “out” by storing data solely outside the United States.  Thirty-three states in fact asked the Supreme Court to take the case in light of other technology giants including Google, Facebook and Twitter.  The states, along with the United States, argue that these other providers may not provide data in compliance with local law enforcement matters.

It is expected that the Justices will have a hard time balancing legitimate law-enforcement versus privacy interests.  MuniBlog will, of course, update subscribers when a decision is rendered in this case.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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