When the Drug Enforcement Administration wanted to access a drug crime suspect’s emails, the agency got a warrant. Unfortunately, the most up-to-date law authorizing such warrants is the 1986 Stored Communications Act. That law was written long before cloud storage, so Congress could not have contemplated how it would be used in this case.
As it turned out, the emails in question were stored on Microsoft servers in Ireland. This wasn’t purely by accident; when he signed up for a Microsoft email account, the suspect claimed to be based in Ireland. However, Microsoft doesn’t necessarily store all emails in their account holder’s home country. Moreover, information on any Microsoft server is theoretically available to an authorized user in Washington, where the company is headquartered.
When the DEA presented its warrant to Microsoft, however, the company pointed out that the emails were stored abroad and that the Stored Communications Act only appears to authorize domestic warrants. Therefore, the DEA warrant wasn’t sufficient. Without a valid warrant, the company refused to hand over the information.
On appeal, the 2nd Circuit Court of Appeals agreed with Microsoft that the warrant was only valid within the United States. The federal government appealed to the Supreme Court, which recently heard oral arguments.
The parties and the justices all agree that the dispute would be best resolved by Congress updating the law. However, the justices agreed tentatively to make a ruling in the meantime.
The government argued that the warrant does not have to apply internationally. While the emails may technically be in Ireland, the Justice Department said, a computer operator in Washington could easily move them back to the U.S. and hand them over.
Microsoft responded that the emails are, nevertheless, located on foreign soil. “The government is asking us to go and fetch them from Ireland.”
Furthermore, Microsoft pointed out that moving the emails to the U.S. requires, at the very least, for those emails to travel along hard wires that are located in Ireland. Doesn’t that country have the right to control access to infrastructure within its sovereign territory?
Will the Supreme Court hold that the warrant can compel Microsoft to retrieve the emails from abroad? Or would that be ordering the company to act as the government’s agent in something the government could not do on its own?
A ruling is expected by the end of June.