Extraterritorial Warrant under SCA Remains Quashed
Tuesday, January 24, 2017
Posted by: Mary Mack
The Second Circuit Court of Appeals en banc, refused to rehear the Microsoft warrant case for data stored in Ireland. The written opinion is a roadmap for rethinking and rewriting the Stored Communications Act, and for interpreting the FRCP Rule 41 amendment allowing magistrate judges to subpoena data outside their jurisdictional boundaries under certain circumstances.
Susan L. Carney, Circuit Judge, writes in her concurrence,
“With a less anachronistic statute or with a more flexible armature for interpreting questions of a statute’s extraterritoriality, we might well reach a result that better reconciles the interests of law enforcement, privacy, and international comity. In an analytic regime, for example, that invited a review of the totality of the relevant circumstances when assessing a statute’s potential extraterritorial we might be entitled to consider the residency or citizenship of the client whose data is sought, the nationality and operations of the service provider, the storage practices and conditions on disclosure adopted by the provider, and other related factors. And we can expect that a statute designed afresh to address today’s data realities would take an approach different from the SCA’s, and would be cognizant of the mobility of data and the varying privacy regimes of concerned sovereigns, as well as the potentially conflicting obligations placed on global service providers like Microsoft. As noted above, there is no suggestion that Congress could not extend the SCA’s warrant procedures to cover the situation presented…”
One dissent waxes eloquently and includes such gems as “Where in the world is a Bitcoin? Where in my DVR are the images and voices? Where are the snows of yesteryear?”
Read the opinion here.