UPDATE: On July 14, the Second Circuit Court of Appeals ruled that a warrant for a suspect’s data doesn’t extend to information stored in computers overseas. “We view the ruling as a big win for privacy rights,” TCP’s Jake Laperruque told CNN Money. Laperruque said the decision closely tracks with TCP’s friend-of-the-court brief that argued the warrant provisions of the Stored Communications Act are not akin to a subpeona and cannot be enforced beyond U.S. borders. Many privacy advocates expect the Department of Justice to appeal the decision.
ORIGINAL POST (Dec. 15, 2014): On December 15, TCP joined several other civil liberties groups in filing a friend-of-the-court brief in the Microsoft Ireland case currently before the Second Circuit Court of Appeals. The issue at the heart of the case is whether domestic search warrants can compel disclosure of emails kept in overseas data centers operated by American companies. A year ago, a magistrate in the Southern District of New York issued a warrant that directed Microsoft to produce content and non-content information about a user whose account is associated with its Dublin, Ireland data center. Microsoft resisted the order, which was upheld by a federal district court. The company appealed to the Second Circuit, and the court stayed the order pending appeal.
In their brief, the groups argued that a “seizure” occurs under the 4th Amendment when a company is compelled to copy data for the government. The brief disputes the government’s argument that the constitutional protections do not apply until government agents actually looks at, and therefore “search,” the data. Accepting the government’s argument would mean that law enforcement agencies could copy anyone’s email records and store them with no 4th Amendment protections until they actually decided to look at them.
The brief also argued that a warrant is required for obtaining the content of emails. It asserts that the government cannot “mix and match” warrant and subpoena powers to obtain email content stored overseas. Under current law, warrants apply only domestically; subpoenas apply only to business records, and are therefore insufficient for obtaining private email content.
Individuals and businesses increasingly rely on cloud storage for email, documents and other private data. Technology companies see the ruling as a potential threat to their plans to offer cloud computing services overseas.
TCP was joined in the brief by The Brennan Center, the ACLU and Electronic Frontier Foundation.