The extraterritorial reach of U.S. law enforcement will face scrutiny once more, with the Supreme Court granting certiorari this month in the highly-publicized—and hotly-contested—dispute over a warrant for Microsoft emails stored on a foreign server. United States v. Microsoft, No. 17-2 (cert. granted Oct. 16, 2017). The case highlights a recurring tension between public safety and privacy concerns, and underscores the increasing complexity behind the technology we all rely on each day.
In the last round of the Microsoft saga, a Second Circuit panel reversed the district court and quashed a warrant for emails of a criminal suspect that were stored on a Dublin server. Microsoft v. United States, 829 F.3d 197 (2d Cir. 2016) (Microsoft). The panel concluded that execution of the warrant would involve an impermissible extraterritorial application of the Stored Communications Act (SCA). Nearly 90 amici, including technology and media companies, civil liberties groups, and governments, had submitted briefs to the circuit and its decision was divisive, even internally: An en banc rehearing was denied by a split 4-4 vote, with strong dissents questioning the merits and implications of the original opinion. Microsoft v. United States, 14-2985 (2d Cir. Jan. 24, 2017). All called for a legislative fix.
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