Compliance Management, Network Security

Supreme Court to mull whether U.S. search warrants apply overseas


The U.S. Supreme Court will heed a Justice Department request and hear arguments about whether the federal government can use U.S. warrants to reach emails stored in servers overseas nearly a year after the Second Circuit Court of Appeals struck down a similar request.

A three-judge panel from the Second Circuit in July 2016 ruled that warrants from the U.S. government issued under the Stored Communications Act couldn't be used to force Microsoft to hand over emails stored in an Irish server. The government then petitioned the court for a rehearing before the full panel of judges, but a subsequent January 2017 split vote, 4-4, slapped down the government's request for a rehearing, meaning that the earlier ruling in Microsoft's favor would stand.

"The opposite ruling could have resulted in chaos and a privacy disaster," Greg Nojeim, director of the Center for Democracy & Technology's Freedom, Security & Technology Project, said in a release at the time. "Providers would have been subject to conflicting obligations to an even greater extent than is the case today, and users' communications privacy could become, over time, subject to the whims of not just the U.S. government, but also other countries seeking their data." 

But the high court's decision to review the case means the justices “will now have to decide whether a warrant issued by a U.S. court can compel a communications provider to produce its users' content no matter where it's stored in the world,” Nojeim said in a release. “This is something that Congress should be addressing, rather than the Court.”

If the Supreme Court decides U.S. warrants have authority overseas, “it will open the floodgates to demands from other countries that their legal processes be able to compel other providers to disclose content that they hold in the U.S., including the content held by Americans,” he said. “This would create chaos.”

Instead the court should stand by the Second Circuit decision that said government should “use the Mutual Legal Assistance Treaty between the U.S. and Ireland in order to gain access to the information in the case,” Nojeim contended, renewing the call for Congress to “resolve the issue of cross-border law enforcement data demands, with a clear focus on strong human rights protections for all internet users.”

“The case pits the interests of law enforcement access to information against concerns over government overreach, and could have ramifications globally as other nations likely will adapt their policies regarding access to information stored in other countries based on what the U.S. Supreme Court decides,” said Robert Cattanach, a partner at Dorsey & Whitney law firm.  “Privacy advocates have decried the prospect of borderless search authority by governments across the world, while law enforcement have painted the specter of criminal activities being shielded by convenient placement of data.”

The case is drawing particular attention as major data privacy regulation is mulled in Europe. “All of this is being played out as the European Union continues its review of the Privacy Shield measure that allows the transfer of personal data of EU residents to the US under the presumption that it can be adequately protected," said Cattanach. 

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