Electronically stored information (ESI) is the focal point of many government investigations. Evidence stored on servers, computers, smart phones or in the cloud largely has replaced more traditional forms of physical evidence. For better and for worse, this has transformed how prosecutors perform their jobs. In remarks in June 2016, Assistant Attorney General Leslie Caldwell acknowledged that cyber innovations have helped expand the government’s ability to detect, investigate and analyze evidence with greater speed and accuracy.1 However, investigations that rely on ESI face novel challenges. Encryption and other technology designed to protect individual privacy or to disguise a computer’s location or IP address, as well as foreign data protection laws, can halt an investigation by making critical evidence effectively “warrant-proof.”2 It is no surprise then that in dealing with issues involving ESI, Congress, courts and commentators are struggling to find the proper balance between preserving Fourth Amendment rights and providing effective tools for government investigations.
This tension was directly in play in July when the Second Circuit considered Fourth Amendment safeguards in Microsoft v. United States, 2016 U.S. App. LEXIS 12929 (2d Cir. July 14, 2016). In that case, the Second Circuit reversed a SDNY decision denying Microsoft’s motion to quash a warrant issued under §2703(a) of the Stored Communications Act (SCA),3 which sought customer emails stored exclusively on servers in Ireland. Under the SCA, the government can use a warrant to compel a service provider, like Microsoft, to produce the contents of customer emails that have been stored for 180 days or less. The statute requires the government to follow the warrant procedures of Rule 41 of the Federal Rules of Criminal Procedure—a rule that, in its current form, has no extraterritorial application.
