United States: Second Circuit Rules That The U.S. Government Cannot Use A Search Warrant To Access Overseas Data

In a landmark decision issued last Thursday, July 14, 2016, a unanimous three-judge panel of the United States Court of Appeals for the Second Circuit reversed the United States District Court for the Southern District of New York and held that the Stored Communications Act (SCA) does not authorize courts to issue and enforce against U.S.-based service providers warrants for the seizure of customer email content that is stored exclusively on foreign servers. The decision, captioned In the Matter of a Warrant to Search a Certain Email Account Controlled and Maintained by Microsoft Corp., overturned a July 2014 lower court decision upholding such a warrant against Microsoft Corporation and finding the company in civil contempt for refusing to comply with the warrant. Circuit Judge Susan L. Carney authored the Second Circuit's decision. Circuit Judge Gerard E. Lynch wrote a separate concurring opinion.


The SCA — part of the broader Electronic Communications Privacy Act (ECPA) — sets up a tiered structure regulating governmental access to stored communications, raising the standard the government must satisfy to obtain progressively more sensitive communications. To obtain "priority stored communications," including the content of communications stored for less than 180 days, the government must, with rare exceptions, obtain a warrant based on a showing of probable cause pursuant to the Federal Rules of Criminal Procedure. In the course of a criminal investigation and after a showing of probable cause, the government issued a warrant to Microsoft, pursuant to the SCA, directing the company to seize and produce the contents of an email account of one of its customers. While some of this data was stored in the United States, the remainder was stored on servers in Ireland. Microsoft agreed to produce the data located in the United States, but declined to produce the data stored in Ireland, arguing that the warrant authorized law enforcement to seize only items within the United States or United States-controlled areas.

In April 2014, Magistrate Judge James Francis, who issued the warrant, denied Microsoft's motion to vacate the warrant with respect to the data stored in Ireland. In July 2014, Southern District of New York Chief Judge Loretta Preska affirmed the magistrate's ruling and held Microsoft in contempt for refusing to comply with the warrant. In December of 2014, Microsoft appealed to the Second Circuit.

On appeal, Microsoft argued that the SCA does not permit a court to issue a warrant compelling an electronic communications provider to seize and produce private correspondence stored on foreign computers or servers. Microsoft insisted there was no basis for the magistrate's position that a warrant under the SCA is actually a "hybrid: part search warrant and part subpoena" requiring a provider to turn over emails "regardless of the location of that information." Moreover, Microsoft argued, because Congress gave no indication that the ECPA's warrant provision should apply extraterritorially, the general presumption against extraterritorial application of U.S. law should control.

Numerous allies of Microsoft's position — including tech companies such as Cisco, Amazon, Apple, AT&T, eBay and Verizon, many of which offer cloud-based data or email storage to their customers, along with various media, business and civil liberties organizations — filed amicus briefs with the Second Circuit.

The Second Circuit's Decision

On July 14, in a 43-page decision by Judge Carney, the Court of Appeals reversed the district court's denial of Microsoft's motion to quash and vacated the order holding Microsoft in civil contempt of court.

The Second Circuit initially addressed whether Congress intended the SCA's warrant provisions to be applied extraterritorially. Following the Supreme Court's decision in Morrison v. National Australian Bank Ltd., 561 U.S. 247 (2010), courts must presume, absent an indication of Congress' clear intent to the contrary, that federal laws apply only within the territorial jurisdiction of the United States. Judge Carney wrote that Congress, in passing the SCA, made no explicit or implicit indication that its warrant provisions would apply overseas. The court observed that when Congress passed the SCA in 1986, it could not have foreseen today's globalized internet infrastructure, suggesting that Congress would not have intended the SCA to apply on an international level. In reaching this conclusion, the court noted that "a globally-connected Internet available to the general public for routine e-mail and other uses was still years in the future when Congress first took action to protect user privacy."

The court also stressed the significance of the SCA's use of the term "warrant," observing that the term "is traditionally moored to privacy concepts applied within the territory of the United States." The court rejected the government's argument that an SCA warrant should be treated as the equivalent of a subpoena, which, under certain circumstances, can reach documents located abroad. "When the government compels a private party to assist it in conducting a search or seizure, the private party becomes an agent of the government, and the Fourth Amendment's warrant clause applies in full force to the private party's actions."

The court then considered whether execution of the warrant in question would in fact qualify as an extraterritorial application of the SCA. In this analysis, the key issue is the "territorial events or relationships" that are the "focus" of the relevant statutory provision. If the events or contacts that are the focus of the statute lie in the United States, application of the law would not be extraterritorial. But if the "domestic contacts are merely secondary" to the focus of the statute, application of the provision would be extraterritorial and therefore impermissible. The court held that the SCA's warrant provisions focus on protecting the privacy of stored communications such as emails, writing that the "overall effect [of the SCA] is the embodiment of an expectation of privacy in those communications." Following this conclusion, the court determined that the territorial events that are the focus of the SCA as applied in this case occurred in Ireland, where the data in question was stored and the seizure of which, if compelled, would take place.

Based on this analysis, the court concluded that execution of the warrant on Microsoft "would constitute an unlawful extraterritorial application" of the SCA under Morrison. The court wrote, "[I]t is our view that the invasion of the customer's privacy takes place under the SCA where the customer's protected content is accessed — here, where it is seized by Microsoft, acting as an agent of the government." Even though Microsoft was located in the United States, "[b]ecause the content subject to the Warrant is located in, and would be seized from, the Dublin datacenter, the conduct that falls within the focus of the SCA would occur outside the United States." The record was silent on the "citizenship and location of the customer," but the court held that neither was relevant to the analysis because "the invasion of the customer's privacy takes place under the SCA where the customer's protected content is accessed."

Concurring Opinion by Judge Lynch

In a concurring opinion, Circuit Judge Gerard Lynch stated his agreement with the court's holding while also recognizing the validity of certain of the government's arguments and urging Congress to update the "badly outdated" 30-year-old statute that controlled the decision. Judge Lynch wrote that the SCA permitted Microsoft (and its foreign customers or Americans who represent to Microsoft that they reside abroad) to avoid a justified demand by the government by simply deciding to store emails outside of the United States for "reasons of profit or cost control." Here, Judge Lynch observed, the government's warrant was constitutionally sound, based on probable cause that the records sought contained evidence of a crime and would have allowed access to the electronic communications in an ordinary domestic context. However, because Microsoft's servers were stored in Ireland, the core issue in the case became whether "Microsoft can thwart the government's otherwise justified demand for the emails at issue by the simple expedient of choosing — in its own discretion — to store them on a server in another country." Judge Lynch concluded, although somewhat hesitantly, that Microsoft does indeed have this power under the SCA.

However, Judge Lynch also noted that the idea of storing online data in a particular physical location may be increasingly outmoded, and urged Congress to consider amending the SCA to allow for a more nuanced analysis grounded in contemporary technological realities. He concluded his opinion by stating that while he concurred in the result and had "little trouble agreeing with [the panel] that the SCA does not have extraterritorial effect," he was "without any illusion that the result should even be regarded as a rational policy outcome, let alone celebrated as a milestone in protecting privacy."

Looking Forward

Microsoft and various other companies have applauded the Second Circuit's ruling as a landmark victory for the protection of consumer privacy. The government is considering whether to seek certiorari before the Supreme Court and may also take up its cause in Congress, alerting legislators to the concerns raised by Judge Lynch in his concurrence and urging them to overhaul the SCA. In the meantime, the Second Circuit's decision may allow electronic communications service providers with servers overseas to place their customers' communications beyond the long arm of American law enforcement, based on where those providers have decided to store the communications.

Originally published in Pratt's Privacy & Cybersecurity Law Report, Volume 2, Number 8, October 2016.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions