Microsoft Ordered by Judge to Produce Emails Stored Abroad

August 7, 2014 – Judge Loretta A. Preska of the Southern District of New York  upheld a magistrate’s ruling ordering Microsoft Corp.  to hand over to federal prosecutors electronic data they are seeking in a narcotics case, and that is stored by Microsoft in Dublin, Ireland. Peska stayed the ruling, however, pending a Microsoft appeal to the Second Circuit.

Microsoft has argued that the Department of Justice (DOJ) has no authority to issue warrants related to emails stored outside the U.S., and that U.S. law has long required search warrants to name the specific location of the information sought, instead of requiring the recipient of the warrant to search multiple locations and jurisdictions for the information.

Judge Preska, ruling from the bench, upheld Magistrate Judge James C. Francis IV’s April decision rejecting Microsoft’s argument.  The Court maintained that the central question in the dispute is not the physical location of the data, but who has control of it.  If Microsoft’s interpretation of the law is upheld, Web services providers could move content around the world in an effort to avoid law enforcement requests, U.S. Attorney Preet Bharara wrote in a brief to the court.

WHAT IS AT STAKE

The ruling has implications for all companies that store data on servers in other countries, which is increasingly common, as more and more companies use Gmail and other Google services to manage their data storage  all over the world.  For in-house counsel, the ruling means that companies cannot plead extraterritoriality when a subpoena is issued for documents stored on a server in another country.

The warrant in the Microsoft case was granted under the Stored Communications Act (SCA), part of the Electronic Communications Privacy Act of 1986, which requires Internet Service Providers to disclose information to the government.

Explore the corresponding links to learn more about how CASTAYBERT PLLC can assist you with:

• Subpoena Responses and Compliance
• E-Discovery
• Non-Party Discovery and Witness Representation
• Hague Convention Requests for Discovery Abroad

You can also visit our Commercial Litigation and Arbitration practice area.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.