DOJ Asks High Court to Clarify Email Warrants Abroad

Tinnaporn Sathapornnanont/Shutterstock.com

The Justice Department says it should be able to produce warrants for emails held by U.S. companies even if they’re stored abroad; tech companies disagree.

The Justice Department wants the Supreme Court to iron out how and when the U.S. government can compel U.S. tech companies to turn over customer emails stored outside the United States.

The question has been roiling government and the tech industry since 2014 when Microsoft refused to turn over customer emails stored in a Dublin data center.

Microsoft argued those emails were only subject to an Irish warrant and that U.S. authorities should ask the Irish government to demand and then turn over the emails using an official request called a Mutual Legal Assistance Treaty.

» Get the best federal technology news and ideas delivered right to your inbox. Sign up here.

Microsoft’s argument doesn’t hold water, however, because the company could simply produce the emails in its Washington state headquarters with a few clicks of a mouse, the Justice Department said in its petition to the high court Friday.

The warrant was issued under the 1986 Electronic Communications Privacy Act, which long predates the modern internet.

The government won before a magistrate judge and in a U.S. District Court in New York but Microsoft prevailed before the U.S. Court of Appeals for the Second Circuit.

As a result of the Second Circuit ruling, tech companies including Google and Yahoo have declined to turn over extraterritorial data in response to warrants, the Justice Department argues in its petition to the high court.

That, in turn, has stymied numerous investigations, including into child sex trafficking, drug trafficking and child pornography, the government lawyers write.

If the Second Circuit decision stands, they write, it will offer “a roadmap for terrorists and criminals in the United States to insulate electronic communications from U.S. investigators” simply by duping email providers into believing the email owners are located outside the U.S.

Requiring Microsoft and other email providers to turn over foreign-stored emails without the assent of the emails’ host country, however, would cause more harm than good, Microsoft President and Chief Legal Officer Brad Smith responded in a blog post.

First, the decision would set a precedent for other nations to demand Americans’ emails stored inside the United States, Smith said. Second, it would make non-Americans warier of doing business with U.S. companies, he said.

Smith argued the Justice Department should let Congress write a new law governing internet data rather than trying to shoehorn the modern internet into the three-decade-old ECPA.

The House and Senate both considered legislation during the past two Congresses that would clarify how and when the government can issue warrants for extraterritorial data but that legislation has yet to pass either chamber.

The International Communications Privacy Act, which Sens. Orrin Hatch, R-Utah, Chris Coons, D-Del., and Dean Heller, R-Nev., introduced in 2016, would allow the Justice Department to issue warrants for U.S. citizens’ digital information regardless of where it’s stored but limit such warrants for foreigners to cases where the country storing the data has not objected or does not have a law enforcement cooperation agreement with the U.S.

The government’s petition argues there’s no time to wait for a legislative fix that may be years off. Nor is it possible to rely on international legal cooperation agreements, because many nations do not have effective cooperation agreements with the U.S., the government petition states.

In other cases, the petition notes, such agreements would also do little good. Google, for example, often fragments customer data so portions of the same email may exist in numerous locations or change location throughout the course of a day.  

X
This website uses cookies to enhance user experience and to analyze performance and traffic on our website. We also share information about your use of our site with our social media, advertising and analytics partners. Learn More / Do Not Sell My Personal Information
Accept Cookies
X
Cookie Preferences Cookie List

Do Not Sell My Personal Information

When you visit our website, we store cookies on your browser to collect information. The information collected might relate to you, your preferences or your device, and is mostly used to make the site work as you expect it to and to provide a more personalized web experience. However, you can choose not to allow certain types of cookies, which may impact your experience of the site and the services we are able to offer. Click on the different category headings to find out more and change our default settings according to your preference. You cannot opt-out of our First Party Strictly Necessary Cookies as they are deployed in order to ensure the proper functioning of our website (such as prompting the cookie banner and remembering your settings, to log into your account, to redirect you when you log out, etc.). For more information about the First and Third Party Cookies used please follow this link.

Allow All Cookies

Manage Consent Preferences

Strictly Necessary Cookies - Always Active

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data, Targeting & Social Media Cookies

Under the California Consumer Privacy Act, you have the right to opt-out of the sale of your personal information to third parties. These cookies collect information for analytics and to personalize your experience with targeted ads. You may exercise your right to opt out of the sale of personal information by using this toggle switch. If you opt out we will not be able to offer you personalised ads and will not hand over your personal information to any third parties. Additionally, you may contact our legal department for further clarification about your rights as a California consumer by using this Exercise My Rights link

If you have enabled privacy controls on your browser (such as a plugin), we have to take that as a valid request to opt-out. Therefore we would not be able to track your activity through the web. This may affect our ability to personalize ads according to your preferences.

Targeting cookies may be set through our site by our advertising partners. They may be used by those companies to build a profile of your interests and show you relevant adverts on other sites. They do not store directly personal information, but are based on uniquely identifying your browser and internet device. If you do not allow these cookies, you will experience less targeted advertising.

Social media cookies are set by a range of social media services that we have added to the site to enable you to share our content with your friends and networks. They are capable of tracking your browser across other sites and building up a profile of your interests. This may impact the content and messages you see on other websites you visit. If you do not allow these cookies you may not be able to use or see these sharing tools.

If you want to opt out of all of our lead reports and lists, please submit a privacy request at our Do Not Sell page.

Save Settings
Cookie Preferences Cookie List

Cookie List

A cookie is a small piece of data (text file) that a website – when visited by a user – asks your browser to store on your device in order to remember information about you, such as your language preference or login information. Those cookies are set by us and called first-party cookies. We also use third-party cookies – which are cookies from a domain different than the domain of the website you are visiting – for our advertising and marketing efforts. More specifically, we use cookies and other tracking technologies for the following purposes:

Strictly Necessary Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Functional Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Performance Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Social Media Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Targeting Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.