UPDATE: Blurring The Line Between Foreign and Domestic: The Expansion of Search Warrant Powers Overseas

The fight over whether the government may access the data of companies and individuals that is stored overseas has officially made its way to the U.S. Supreme Court. On October 16, the Supreme Court agreed to review the Second Circuit’s decision in Matter of Warrant to Search a Certain E-Mail Account Controlled & Maintained by Microsoft Corp., 829 F.3d 197, 203 (2d Cir. 2016). The grant of certiorari was a win for the Department of Justice. As we previously reported, the Second Circuit had held that the government could not compel production of Microsoft’s email account data stored in Dublin, Ireland because warrants traditionally may only be enforced domestically under the Stored Communication Act. While there is much speculation about which way the Court may rule, the consensus appears to be that its decision could significantly impact the government’s search and seizure power under the Fourth Amendment. It is also conceivable that the ruling could pave the way for broader discovery in the civil context, allowing parties to subpoena or otherwise request documents stored abroad in the course of civil litigation.

Meanwhile, there are identical legislative proposals (International Communications Privacy Act of 2017 (ICPA)) that have been introduced in both the Senate and House of Representatives addressing the privacy of internationally stored data. The ICPA would allow the government to obtain with a warrant the electronic communications of U.S. citizens and permanent residents, regardless of where the individuals or communications are located, from service providers. The proposals have received broad support, including from Microsoft, which has stated that the proposed law “updates antiquated data laws to better meet the needs of law enforcement, while protecting people’s privacy rights.”

We will continue to monitor these proceedings, which could have a major impact on our clients.