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Magistrate Judge Orders Microsoft to Comply with Extraterritorial Warrant for E-Mail

April 25, 2014. James Francis, a Magistrate Judge of the U.S. District Court (SDNY), issued a Memorandum and Order in the matter styled "In the Matter of a Warrant to Search a Certain E-Mail Account Controlled and Maintained by Microsoft Corporation".

This Magistrate Judge, at the request of the U.S. government, issued a search and seizure warrant that directs Microsoft to produce the contents of one of its customer's e-mail accounts. Microsoft argued that the account data is stored on a server located in Dublin, Ireland, that the U.S. cannot issue extraterritorial search and seizure warrants, and therefore the warrant must be quashed.

The Magistrate Judge, relying upon his interpretation of the Stored Communications Act (SCA), at 18 U.S.C. 2703, rejected Microsoft's argument, and order it to produce the contents of the e-mail account.

Microsoft released a statement by David Howard, its Deputy General Counsel, announcing that Microsoft will continue to argue this issue before the District Court judge, and if it loses there, it will appeal to the U.S. Court of Appeals (2ndCir).

Howard wrote that "the issue is straightforward. It's generally accepted that a U.S. search warrant in the physical world can only be used to obtain materials that are within the territory of the United States. A U.S. prosecutor cannot obtain a U.S. warrant to search someone's home located in another country, just as another country's prosecutor cannot obtain a court order in her home country to conduct a search in the United States. That's why the U.S. has entered into many bilateral agreements establishing specific procedures for obtaining evidence in another country. We think the same rules should apply in the online world".

The SCA is part of the Electronic Communications Privacy Act (ECPA), which is codified at 18 U.S.C. 2701-2712. The Congress enacted it in 1986. With advances in information technology, it is now hopelessly out of date. Although, law enforcement and intelligence agencies benefit from its obsolescence.

This case involves a SCA Section 2703(a) warrant for both content of e-mail and account information, such as credit card information. Section 2703 also provides for warrantless procedure, but the selection of procedure also affects what may be acquired, and whether the target is entitled to notice.

Section 2703(a) provides in part that "A governmental entity may require the disclosure by a provider of electronic communication service of the contents of a wire or electronic communication, that is in electronic storage in an electronic communications system for one hundred and eighty days or less, only pursuant to a warrant issued using the procedures described in the Federal Rules of Criminal Procedure (or, in the case of a State court, issued using State warrant procedures) by a court of competent jurisdiction." (Parentheses in original.)

Rule 41 of the Federal Rules of Criminal Procedure (FRCrP) covers "Search and Seizure". Rule 41(b) provides in part that "At the request of a federal law enforcement officer or an attorney for the government ... a magistrate judge with authority in the district ... has authority to issue a warrant to search for and seize a person or property located within the district". Other parts of Rule 41(b) allow the magistrate judge, under specified circumstances, to issue a warrant for property located in other districts, in a United States territory, possession, or commonwealth, or in U.S. diplomatic facilities abroad.

Dublin, Ireland is not located in the Southern District of New York, or any other U.S. district or jurisdiction.

The Magistrate Judge concluded that the phrase "using the procedures described in" Rule 41 includes some, but not all, of the procedures described in Rule 41. In particular, he concluded that it does not include to those parts that limit warrants to searches and seizures conducted within a U.S. jurisdiction.

This opinion does not disclose which U.S. government agency sought the warrant, who signed the application for the warrant, who was the target, or why the U.S. government wants his e-mail. This opinion only analyzes the legal issue of extraterritorial search warrants, and discloses only those procedural facts necessary to that analysis.

(Published in TLJ Daily E-Mail Alert No. 2,649, April 29, 2014.)