US Justice Department Petitions for En Banc Rehearing of Microsoft Cloud Decision

The US Justice Department has petitioned for an en banc rehearing by the US Second Circuit Court of Appeals (the Court) after the Court concluded that US courts were not authorized under the Stored Communications Act to issue and enforce warrants against US-based internet service providers for the disclosure of customer email content stored on foreign servers that is within the control of US-based companies. An en banc hearing would require a full panel of appellate judges to review the decision, rather than the standard panel of three appellate judges.

The Court’s July 2016 decision reversed the decision of the US District Court for the Southern District of New York ordering Microsoft to disclose data about a customer’s email account stored in a server located in Ireland. The lower court’s decision was previously reported in E-TIPS Newsletter here.

The US Justice Department filed the petition to prevent companies like Microsoft from using an “ever-changing mix of facilities around the world” to avoid search warrants by juggling data. The case is under close scrutiny as a test of extra-jurisdictional reach.

Microsoft argues that the Court’s decision is justified under the Stored Communications Act, which was designed to protect privacy.  Microsoft also contends that US law enforcement should be required to obtain access to data stored overseas pursuant to the procedures established by international treaties entered into by the US.

If the petition is denied, the US Justice Department may appeal the Court’s decision to the Supreme Court of the United States.

Summary By: Jennifer Davidson