Court Rules Against Microsoft: Questions of Data, Territoriality, and the Government’s Search Authority Headed to the 2nd Circuit

I blogged previously about the really interesting dispute between Microsoft and the government regarding the territorial reach of the warrant authority under ECPA. As you may recall, Microsoft moved to quash a warrant requiring it to produce emails stored in a data center in Dublin Ireland, arguing that the court had no jurisdiction to issue a warrant with extraterritorial reach.  The government countered that Microsoft was compelled to produce everything in its custody and control, regardless of where it was stored, and in any event, it was not an extraterritorial search since it was being accessed from within the United States.  Magistrate Judge Francis ruled for the government, and Microsoft appealed.

In a ruling issued from the bench this morning, Judge Preska sided with the government and  Magistrate Judge, although agreed to stay the ruling to give Microsoft time to appeal.   Microsoft already has vowed to take this to the Second Circuit.   The case raises a host of important and fascinating issues of first impressions.  So stay tuned for more!  (Also check out Orin Kerr’s interesting take on the case here.)


About the Author(s)

Jennifer Daskal

Professor and Faculty Director of the Tech, Law, Security Program at American University Washington College of Law. Member of the editorial board of Just Security. Follow her on Twitter (@jendaskal).