Case of the Day: Microsoft v. United States

The case of the day is Microsoft Corp. v. United States (2d Cir. 2016). The government issued a subpoena to Microsoft under the Stored Communications Act, 18 U.S.C. §§ 2701 et seq. The subpoena sought the production of data that was stored on servers in Ireland. The holding of the case is that in these circumstances, the government had to proceed by request to the Irish government under the US/Ireland MLAT. A warrant under the SCA has no extraterritorial application.

I’m not going to address the case in detail. The case is interesting because it is well-established that a subpoena in a civil case can compel a person to produce documents within its possession, custody, or control no matter where they are located, as long as the person served with the subpoena is within the jurisdiction of the court. But in criminal procedure, a warrant has strict territorial limitations, set out in Fed. R. Crim. P. 41(b). So is a warrant under the SCA just like an ordinary warrant in the criminal law context, or more like a subpoena? In light of the presumption against extraterritorially, the court held that the territorial limitations in ordinary warrants should apply.

There has been some good commentary on the case already—check out Lawfare for an interesting take. I won’t say more about the case now. I am working on a post about territoriality and data more generally, which I hope to have ready by next week.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. Folkman also serves as an arbitrator and is a member of the Commercial and Consumer Panels of the American Arbitration Association. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's treatise on International Aspects of US Litigation (J. Berger, ed. 2017), and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012 and 2014 - 2016.

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