United States: DOJ Responds To ‘Microsoft Ireland' Decision With Proposed Legislation And Bilateral Agreements Allowing Cross-Border Data Searches

The recent appellate court decision in Microsoft Corp. v. United States, No. 14‐2985, slip op. (2d Cir. July 14, 2016) (Microsoft Ireland), represents an important setback for the U.S. government's aggressive extraterritorial application of traditional law enforcement techniques to collect electronic communications and data. However, it is just an initial skirmish in what will be a lengthy battle between privacy rights and principals of international comity, on the one hand, and the legitimate needs of law enforcement in an age of rapid globalization of digital communications, on the other. Indeed, in the wake of the decision – which may ultimately wind up before the U.S. Supreme Court – the U.S. government pushed forward with new and potentially far-reaching proposals for seizing the electronic communications of foreign nationals and for sharing data stored in the U.S. with law enforcement agencies of foreign governments. Corporations and individuals with a global footprint need to keep apprised of these developments in order to make effective decisions about where and how to store their data.

In Microsoft Ireland, the Second Circuit Court of Appeals ruled that a Department of Justice (DOJ) search warrant for electronic communications stored by Microsoft on servers in Ireland was an unlawful attempt to seize data beyond U.S. borders. The court held that the 1986 Stored Communications Act (SCA), which permits U.S. law enforcement to issue search warrants targeting electronic communications, does not apply extraterritorially to data stored abroad. Because the Microsoft warrant sought data stored in Ireland, the court found that the warrant would have to be executed there – an unlawful extraterritorial application of the SCA. The court reached this conclusion despite Microsoft's technical ability to recall the data in Ireland back to the U.S. using database commands.

The decision culminated from events that began in December 2013, when a magistrate judge in New York issued a warrant under the SCA directing Microsoft to disclose all emails and other private information associated with a certain email account in Microsoft's possession, custody or control. Microsoft determined that the target account and content were stored in Ireland and filed a motion to quash the warrant, arguing the information was beyond the U.S. government's reach. The magistrate judge denied the motion and the District Court affirmed, but a unanimous three-judge panel at the Second Circuit reversed and held that the 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 ruling is a victory for U.S. technology companies that store data abroad; they now have some comfort, at least under Second Circuit jurisprudence, that such data are not reachable by U.S. law enforcement. The decision is also being perceived as an important reinforcement of the individual privacy rights that protect users under their own country's laws.

The DOJ may still use mutual legal assistance treaties (MLATs) to obtain electronic evidence stored abroad, but MLATs tend to be slow and may prove unworkable if the target evidence relates to an immediate and quickly evolving criminal or national security threat. Given the significance of Microsoft Ireland for privacy, constitutional rights and national security, an appeal to the U.S. Supreme Court is well within in the realm of possibility.

On the heels of Microsoft Ireland, the DOJ submitted to Congress proposed legislation that would allow the U.S. to enter into reciprocal agreements with other countries to facilitate the DOJ's ability to obtain electronic data stored abroad. In addition, the legislation seeks to remove legal barriers preventing foreign governments from directly accessing electronic communications stored in the U.S. by U.S. communications providers. Among other things, the legislation seeks to amend provisions of the Omnibus Crime Control and Safe Streets Act, the Stored Communications Act, and the Pen/Trap Statute to allow service providers to intercept, access and disclose communications content and metadata in response to an order from a foreign government if that order is pursuant to an executive agreement that the Attorney General determines meets several statutory requirements.

The Obama administration is already moving to negotiate deals with individual countries to obtain electronically stored data directly from offshore service providers and servers. On July 15, 2016, just a day after the Microsoft Ireland decision, senior DOJ official Brad Wiegmann announced at a public forum in Washington, D.C., that the Obama administration is working on a series of reciprocal agreements with foreign governments that would allow those governments to serve U.S. technology companies with foreign warrants for email searches and wiretaps. According to Wiegmann, foreign investigators would be able to serve a warrant directly on a U.S. firm to see a suspect's stored emails or intercept their messages in real time, as long as the surveillance didn't involve U.S. citizens or residents. Such deals would also give U.S. investigators reciprocal authority to search data in those countries.

The first such deal under consideration is a bilateral agreement between the U.S. and the U.K. that would permit U.S. companies to provide electronic data in response to U.K. orders targeting non-U.S. persons located outside the United States, while affording the United States reciprocal rights regarding electronic data of companies storing data in the United Kingdom. If Congress enacts the proposed legislation enabling the agreement with the U.K., U.K. law enforcement would be able to serve a search warrant on a U.S. company to see a suspect's emails or intercept them in real time, as long as the surveillance did not involve U.S. citizens or residents. The U.S. would be able to do the same for data of U.S. citizens located in the U.K., although it remains to be seen how Microsoft Ireland may impede that effort.

As the complex policy issues surrounding the Microsoft Ireland decision continue to play out in the courts, Congress and the international arena, companies and individuals should monitor developments, seek guidance from outside counsel, and consider how best to advocate for the protection of their interests and the interests of the public.

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.

In association with
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
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.