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Implications of the Microsoft Ireland Case on Law Enforcement Electronic Records Warrants
Microsoft v. United States (Case 14-2985, Document 288-1, 07/14/2016, 1815374)
The U.S. Second Circuit’s decision held that warrants for customer email are unenforceable when the provider opted to store emails on a server outside the United States. The statute only has territorial effect, the Second Circuit reasoned, and that means it doesn’t apply to foreign-stored email. Treating the statute as a way to get email rather than a means of limiting access to email, the court ruled that the government couldn’t use a domestic warrant to compel the disclosure of emails stored abroad. This case has a detrimental effect on law enforcement across the United States as several internet service providers have elected the second circuit decision applies to all jurisdictions across the country. Thus, most any law enforcement demand for electronic records stored upon the server of an internet service provider trough the use of an ECPA warrant, will be denied and met with legal challenge.
For example, If you’re a law enforcement officer and you get a search warrant for a specific set of emails in a domestic suspect’s account, the provider will send you only the subset of responsive emails that happen to be in the United States when the provider pressed the button to retrieve the account records as part of the warrant execution. The rest is out of reach, even with foreign legal assistance, as there is no one abroad to query the network pursuant to foreign legal process.
The bottom line is, foreign-stored electronic content may be out of reach for U.S. law enforcement. We at LEOTTA will keep you posted as this case develops.
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