By Dennis Crouch
In United States v. Microsoft, the Supreme Court is asked to determine the scope of US extraterritorial police powers. Back in 2013, the Federal Government served a warrant on Microsoft seeking email records of one of its clients who was a suspected drug trafficker. Microsoft refused to comply because the emails were stored in Ireland. Although related to the Fourth Amendment, the question presented to the court centers on the scope of the Stored Communications Act – and whether warrants issued under 18 U.S.C. § 2703 can compel a US entity to retrieve and deliver materials stored abroad. Microsoft argues that the FBI should go through Irish protocol to get the information stored in Ireland. The case could have some obviously big impact on corporate disclosures abroad.
We might talk about liberty and freedom, but Microsoft’s position here is that a key way for US Citizens to maintain secrecy is to use foreign servers. Of course, few folks know the location of the clouds where their information is stored. Here, it was simply favorable tax law and a love for green that led to Microsoft’s Irish servers. A more apt question might be whether Microsoft must take action in Ireland or can the retrieval be entirely controlled from the US.
An opinion should be out by mid-June.