Introducing Just Security’s Symposium on United States v. Microsoft

Just Security is pleased to announce the launch of an online symposium on United States v. Microsoft, which will be argued at the U.S. Supreme Court on February 27. The question in the case is whether Section 2703 of the Stored Communications Act (SCA) allows a court to order a U.S. provider of email services to disclose electronic communications stored outside the United States.

A part of the Electronic Communications Privacy Act of 1986, the SCA governs how electronic communications may and may not be lawfully accessed and disclosed. Section 2703 provides several mechanisms for the government to acquire communications, including a warrant issued upon a showing of probable cause.

In December 2013, a magistrate judge issued a Section 2703 warrant requiring Microsoft to disclose information for an email account that the government believed was being used to further illegal drug activity in the United States. Microsoft disclosed account-identification records that were stored in the United States, but it refused to disclose the contents of the emails that were stored at a datacenter in Ireland. Microsoft moved to quash the warrant as to all material stored abroad, arguing that it was an impermissible extraterritorial application of Section 2703. The magistrate judge denied the order to quash, and the district court affirmed.

On appeal, the Second Circuit reversed. Applying the presumption against extraterritoriality, the court concluded “that the relevant provisions of the SCA focus on protecting the privacy of the content of a user’s stored electronic communications.” Reasoning that the invasion of a user’s privacy takes place where the communications are stored, the court held that using Section 2703 to issue a warrant for communications stored in Ireland was impermissibly extraterritorial. The Second Circuit denied en banc review by an equally divided vote.

Ultimately, Congress will likely have the last word. As Jennifer Daskal reported last Monday, Senators Hatch, Coons, Graham, and Whitehouse have introduced a bill to update the SCA and address the issues raised in Microsoft. But until amendments are made, the Supreme Court will have to interpret the SCA as it is.

The case raises important questions of privacy, law enforcement, internet regulation, and statutory interpretation in an international context. Over the next two weeks, posts from Pamela Bookman, Zachary Clopton, William S. Dodge, Kristen Eichensehr, James Grimmelmann, Paul Ohm, and Andrew Woods will address a number of these issues. Jennifer Daskal will round out the symposium with some closing reflections. We hope you enjoy the discussion. 

About the Author(s)

William S. Dodge

Martin Luther King, Jr. Professor of Law at the University of California, Davis, School of Law and Co-Reporter for the Restatement (Fourth) of Foreign Relations Law: Jurisdiction. From August 2011 to July 2012, he served as Counselor on International Law to the Legal Adviser at the U.S. Department of State.

Kristen Eichensehr

Assistant Professor at UCLA School of Law, Affiliate Scholar at Stanford Law School's Center for Internet and Society, Former Special Assistant to the Legal Adviser of the U.S. Department of State Follow her on Twitter (@K_Eichensehr).