US Judge Orders Microsoft To Hand Over User Information Held In Ireland

In a recent ruling of the US District Court for the Southern District of New York entitled Memorandum and Order In The Matter Of A Warrant To Search A Certain E-Mail Account Controlled And Maintained By Microsoft Corporation (USDC, 13 Mag 2814) (April 25, 2014), Microsoft was ordered to produce the e-mail content of a customer whose information is stored on servers located in Dublin, Ireland. Background Microsoft owns and operates multiple e-mail-based services such as Hotmail and Outlook that allow an account to be opened simply by creating a username and password. Messages are stored in datacentres geographically located closest to the “country code” entered at registration. On December 4, 2013, magistrate judge James Francis issued a search warrant authorizing the search and seizure of information associated with a user whose Microsoft e-mail account messages were stored in Dublin, Ireland. Microsoft’s Global Criminal Compliance team responded to the request by producing only information stored on US servers, such as sender and recipient addresses and the date and time of transmissions. Microsoft also filed a motion to quash the warrant. Statutory framework The Stored Communications Act, enacted as part of the Electronic Communications Privacy Act of 1986, authorizes the US government to seek information by way of subpoena, court order, or warrant. Legal arguments Microsoft’s argument in the motion was straightforward: a warrant is a legal tool which cannot extend to the search and seizure of extraterritorial property; as such, the warrant should be quashed. The company drew a direct comparison between digital storehouses and physical spaces, contending that if the government cannot search a home overseas, they should not have the power to search e-mail content stored in another nation. In a blog post, Corporate Vice President & Deputy General Counsel David Howard explained that Microsoft did not wish to frustrate law enforcement; rather, the company wanted the government to follow bilateral agreements which have established specific procedures for obtaining evidence outside the US. Judge Francis characterized Microsoft’s argument as “simple, perhaps deceptively so”, categorizing a search warrant for electronic communications as a hybrid, which is part search warrant and part subpoena. The Judge stated: "It is executed like a subpoena in that it is served on the ISP in possession of the information and does not involve government agents entering the premises of the ISP to search its servers and seize the email account in question." Judge Francis also noted the possible practical effects of ruling in favour of Microsoft. In his view, wrongdoers could easily avoid warrants by entering a non-US country code when they register for an e-mail. This falsehood would prompt their messages to be stored extraterritorially. Additionally, observed Judge Francis, having to comply with bilateral treaties would significantly slow or even deter the gathering of information necessary for government investigations. Microsoft has indicated it will appeal the decision. Summary by: Elena Iosef