Law Enforcement in the Cloud; The U.S. Storms in and Europe Follows

By Amelia Pennington. A legal intern at Sunstein

In United States v. Microsoft Corporation, the question that made its way through the Southern District of New York, the Second Circuit Court of Appeals, and then to the Supreme Court is: Under what circumstances may federal law enforcement issue a warrant for digital information that is stored abroad?  On March 23, 2018, President Trump signed the Clarifying Lawful Overseas Use of Data Act (“CLOUD Act”), rendering the case moot.

The United States served Microsoft with a warrant pursuant to the Stored Communications Act (“SCA”) on December 4, 2013. The warrant directed Microsoft to seize and subsequently deliver to federal investigators the contents of a customer’s email account. The government believed that the account was being used in connection with narcotics trafficking. Microsoft delivered the information that was stored in the United States but refused to comply with the warrant as to information that was stored in Dublin, Ireland.

The District Court held Microsoft in contempt for failing to comply with the warrant. On appeal, the Second Circuit reversed that decision, concluding that “Congress did not intend the SCA’s warrant provision to apply extraterritorially.”  On October 16, 2017, the Supreme Court granted the government’s petition for certiorari.

The CLOUD Act amended the SCA by explicitly extending disclosure requirements to information stored in or outside of the United States. Section 2703 of the SCA provides that a government entity, pursuant to a proper warrant, may “require the disclosure by a provider of electronic communication service of the contents of a wire or electronic communication.”[1] Section 2713, created by the CLOUD Act, now adds that “a provider of electronic communication service or remote computing service shall comply with the obligations of this chapter. . . regardless of whether such communication, record, or other information is located within or outside of the United States.” The CLOUD Act has thus settled the question of whether a warrant issued under the SCA is applicable to information stored outside of the United States.

In response to the new legislation, both the Solicitor General and Microsoft agreed that the suit against Microsoft be dismissed as moot, given that the CLOUD Act had resolved the question that was before the court. In addition, the government has withdrawn its original warrant and served a fresh warrant pursuant to the CLOUD Act.

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