Stored Communications Act

globe with digital overlayThe fight over whether the government may access the data of companies and individuals that is stored overseas has officially made its way to the U.S. Supreme Court. On October 16, the Supreme Court agreed to review the Second Circuit’s decision in Matter of Warrant to Search a Certain E-Mail Account Controlled & Maintained by Microsoft Corp., 829 F.3d 197, 203 (2d Cir. 2016). The grant of certiorari was a win for the Department of Justice. As we previously reported, the Second Circuit had held that the government could not compel production of Microsoft’s email account data stored in Dublin, Ireland because warrants traditionally may only be enforced domestically under the Stored Communication Act. While there is much speculation about which way the Court may rule, the consensus appears to be that its decision could significantly impact the government’s search and seizure power under the Fourth Amendment. It is also conceivable that the ruling could pave the way for broader discovery in the civil context, allowing parties to subpoena or otherwise request documents stored abroad in the course of civil litigation.

Meanwhile, there are identical legislative proposals (International Communications Privacy Act of 2017 (ICPA)) that have been introduced in both the Senate and House of Representatives addressing the privacy of internationally stored data. The ICPA would allow the government to obtain with a warrant the electronic communications of U.S. citizens and permanent residents, regardless of where the individuals or communications are located, from service providers. The proposals have received broad support, including from Microsoft, which has stated that the proposed law “updates antiquated data laws to better meet the needs of law enforcement, while protecting people’s privacy rights.”

We will continue to monitor these proceedings, which could have a major impact on our clients.

globe with digital overlayA dispute in California federal court over whether Google must turn over documents stored overseas in response to a search warrant may have major implications for white collar practitioners and their clients. Last week Google asked a California federal judge to review an order by Magistrate Judge Laurel Beeler that required the company to produce content stored outside the United States in response to a warrant. U.S. District Judge William Alsup will hear Google’s motion for de novo review of the order on June 22. In the order at issue, Judge Beeler denied Google’s motion to quash a warrant issued pursuant to the Stored Communications Act (SCA), 18 U.S.C. § 2703. The SCA, in part, requires the disclosure of customer communications or records by internet service providers pursuant to a warrant. The warrant sought documents related to specific Google email accounts, including subscriber information, evidence of specified crimes, and information about the account holders’ true identities, locations, and assets. Google produced information it stored domestically, but argued that the warrant could not reach information stored abroad. Google argued that its legal team in the United States were the only personnel authorized to access and produce the communications, which could be accessed from within the United States. Matter of Search of Content that is Stored at Premises Controlled by Google, No. 16-MC-80263-LB, 2017 WL 1487625, at *2 (N.D. Cal. Apr. 25, 2017). Continue Reading Blurring The Line Between Foreign and Domestic: The Expansion of Search Warrant Powers Overseas