American Bar Association
Media Alerts
Media Alerts - Microsoft Corp. v. United States - Second Circuit
Decrease font size
Increase font size
January 25, 2017
  Microsoft Corp. v. United States - Second Circuit
Headline: In Split, Second Circuit Declines to Rehear Case; Prior Decision Granted Motion to Quash Warrant to Compel Microsoft Corporation to Disclose Contents of E-Mails Thought to Contain Evidence of Criminal Activity Stored on Foreign Server

Area of Law:
Fourth Amendment; Search Warrants; Technology

Issue(s) Presented: Whether a full panel of the Second Circuit should rehear a motion, granted in the prior opinion, to quash a warrant issued by the United States government to Microsoft seeking to compel it to disclose private e-mails stored on a server in Ireland.

Brief Summary:
A magistrate judge issued a warrant sought by the United States government under the Stored Communications Act (SCA) requiring Microsoft Corporation, a domestically-incorporated company, to reveal the contents of private e-mails stored on a server in Ireland, but accessible by Microsoft on servers in the United States, based upon probable cause that those e-mails contained evidence of criminal activity. The United States District Court for the Southern District of New York denied Microsoft's motion to quash the warrant, but a majority panel of the Second Circuit reversed, finding that the warrant was an unlawful extraterritorial application of the SCA. The United States moved for a rehearing by the full Second Circuit court. In a four-to-four split decision, with one concurring and four dissenting written opinions, the Second Circuit denied rehearing en banc.

To read the full opinion, please visit: http://www.ca2.uscourts.gov/de...60619213ece/2/hilite/

Extended Summary:
The United States sought a warrant under the Stored Communications Act to obtain private emails that it believed contained evidence of criminal activity. The warrant was issued by a neutral magistrate judge of the United States District Court for the Southern District of New York upon a showing of probable cause. The warrant directed Microsoft Corporation, a United States corporation and service provider, to use its computer portal in Redmond, Washington to access and disclose the contents of specific e-mails that were stored on servers in Ireland. Microsoft moved to quash the warrant, and the United States District Court for the Southern District of New York denied Microsoft's motion. The original panel majority of the Second Circuit reversed the district court's decision and quashed the warrant on the ground that the warrant "was an extraterritorial application of the SCA." On the government's motion for rehearing en banc, a split four-four court declined to rehear the case. Five judges issued written opinions in the denial including Judge Carney, who concurred in the denial of rehearing, and Judges Jacobs, Cabranes, Raggi, and Droney who each issued a written dissent.

In concurring, Judge Carney wrote that the majority panel's decision to quash the government's search warrant was required under the plain language of the SCA and governing Supreme Court precedent. Specifically, given the Act's language indicating Congress's intent that the Act's warrant procedures not apply extraterritorially, Supreme Court precedent dictated that the court examine whether execution of this warrant - seeking private customer electronic data stored on servers in Ireland - would constitute an improper extraterritorial application of the SCA in light of the statute's "focus." The original panel majority found that the SCA's "focus" to be privacy protections, and the "locus" of those protections to be the place of data storage - Ireland in this case. Although agreeing with the majority in light of existing law, Judge Carney cited the challenge of balancing the needs of law enforcement with citizens' privacy in the age of modern technology and emphasized the need for congressional revision to the SCA to more effectively balance these concerns. She also highlighted sovereignty concerns with the United States accessing data of a foreign citizen in a foreign country.

In his dissent, Judge Jacobs accepted that the SCA was not intended to apply extraterritorially, but had hoped to rehear the case because, he argued, no extraterritorial reach was required in this case because the data sought was easily accessible via Microsoft's computer portals within the United States and would be delivered there. Judge Jacobs called the original majority panel's approach, which evaluated where the data was stored or located, as if it were a tangible object "unmanageable and increasingly antiquated."

Judge Cabranes also dissented from the majority's decision to deny rehearing, arguing that the opinion quashing the warrant improperly ignored that Microsoft already lawfully possessed the e-mails, could access them domestically, and would deliver them in the United States, making this a domestic, and not extraterritorial, application of the SCA. He contended that the original decision improperly focused on the storage or retrieval location in evaluating the SCA's privacy focus, rather than where the disclosure of the information would take place. Additionally, Circuit Judge Cabranes worried about the decision's "far reaching" impact on law enforcement's ability to investigate crimes.

In her dissent, Judges Raggi similarly contended that the original Second Circuit majority got the decision wrong, and that the challenged warrant applied the SCA domestically because the warrant was served on Microsoft and required delivery in the United States. She went further in challenging whether "privacy" was even the focus of the SCA. Judge Raggi notably emphasized the "disturbing consequences" of the original panel's decision to quash the warrant. Judge Droney remarked on the difficulty of the task that confronted the original Second Circuit panel in attempting to apply the SCA, drafted long ago, in the age of modern technology, but agreed with the other dissenters, that a rehearing en banc should have been granted because this did not constitute an extraterritorial application of the SCA.

To read the full opinion, please visit: http://www.ca2.uscourts.gov/de...60619213ece/2/hilite/

Panel: Chief Judge Katzmann and Circuit Judges Jacobs, Cabranes, Raggi, Hall, Chin, Carney, and Droney

Date of Issued Opinion: 01/24/17

Docket Number: No. 14-2985

Decided: Rehearing en banc denied

Case Alert Author: Samantha Hazen

Counsel: E. Joshua Rosenkranz, Orrick, Herrington & Sutcliffe LLP (Robert M. Loeb and Brian P. Goldman, Orrick, Herrington & Sutcliffe LLP, New York, NY; Guy Petrillo, Petrillo Klein & Boxer LLP, New York, NY; James M. Garland and Alexander A. Berengaut, Covington & Burling LLP, Washington, DC; Bradford L. Smith, David M. Howard, John Frank, Jonathan Palmer, and Nathaniel Jones, Microsoft Corp., Redmond, WA; on the brief), for Appellant, Justin Anderson, Assistant United States Attorney (Serrin Turner, Assistant United States Attorney, on the brief), for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY, Brett J. Williamson, David K. Lukmire, Nate Asher, O'Melveny & Myers LLP, New York, NY; Faiza Patel, Michael Price, Brennan Center for Justice, New York, NY; Hanni Fakhoury, Electronic Frontier Foundation, San Francisco, CA; Alex Abdo, American Civil Liberties Union Foundation, New York, NY; for Amici Curiae Brennan Center for Justice at NYU School of Law, American Civil Liberties Union, The Constitution Project, and Electronic Frontier Foundation, in support of Appellant, Kenneth M. Dreifach, Marc J. Zwillinger, Zwillgen PLLC, New York, NY and Washington, DC, for Amicus Curiae Apple, Inc., in support of Appellant, Andrew J. Pincus, Paul W. Hughes, Mayer Brown LLP, Washington, DC, for Amici Curiae BSA | The Software Alliance, Center for Democracy and Technology, Chamber of Commerce of the United States, The National Association of Manufacturers, and ACT | The App Association, in support of Appellant, Steven A. Engel, Dechert LLP, New York, NY, for Amicus Curiae Anthony J. Colangelo, in support of Appellant, Alan C. Raul, Kwaku A. Akowuah, Sidley Austin LLP, Washington, DC, for Amici Curiae AT&T Corp., Rackspace US, Inc., Computer & Communications Industry Association, i2 Coalition, and Application Developers Alliance, in support of Appellant, Peter D. Stergios, Charles D. Ray, McCarter & English, LLP, New York, NY and Hartford, CT, for Amicus Curiae Ireland, Peter Karanjia, Eric J. Feder, Davis Wright Tremaine LLP, New York, NY, for Amici Curiae Amazon.com, Inc., and Accenture PLC, in support of Appellant, Michael Vatis, Jeffrey A. Novack, Steptoe & Johnson LLP, New York, NY; Randal S. Milch, Verizon Communications Inc., New York, NY; Kristofor T. Henning, Hewlett‐Packard Co., Wayne, PA; Amy Weaver, Daniel Reed, Salesforce.com, Inc., San Francisco, CA; Orin Snyder, Thomas G. Hungar, Alexander H. Southwell, Gibson, Dunn & Crutcher LLP, New York, NY; Mark Chandler, Cisco Systems, Inc., San Jose, CA; Aaron Johnson, eBay Inc., San Jose, CA, for Amici Curiae Verizon Communications, Inc., Cisco Systems, Inc., Hewlett‐Packard Co., eBay Inc., Salesforce.com, Inc., and Infor, in support of Appellant, Laura R. Handman, Alison Schary, Davis Wright Tremaine LLP, Washington, DC, for Amici Curiae Media Organizations, in support of Appellant, Philip Warrick, Klarquist Sparkman, LLP, Portland, OR, for Amici Curiae Computer and Data Science Experts, in support of Appellant, Owen C. Pell, Ian S. Forrester, Q.C., Paige C. Spencer, White & Case, New York, NY, for Amicus Curiae Jan Philipp Albrecht, Member of the European Parliament, in support of Appellant, Owen C. Pell, Ian S. Forrester, Q.C., Paige C. Spencer, White & Case, New York, NY; Edward McGarr, Simon McGarr, Dervila McGirr, McGarr Solicitors, Dublin, Ireland, for Amicus Curiae Digital Rights Ireland Limited, National Council for Civil Liberties, and The Open Rights Group, in support of Appellant.

Author of Opinion(s): Denial en banc (Circuit Judge Carney concurring; Circuit Judges Jacobs, Cabranes, Raggi, and Droney dissenting)

Circuit:
2nd Circuit

Case Alert Circuit Supervisor: Professor Elyse Diamond

    Posted By: Elyse Diamond @ 01/25/2017 07:27 AM     2nd Circuit  

FuseTalk Enterprise Edition - © 1999-2018 FuseTalk Inc. All rights reserved.

Discussion Board Usage Agreement

Back to Top