Microsoft has found itself at the center of an intense legal battle regarding the ability of the United States Government to subpoena data stored abroad. In addition to drawing the attention of constitutional law scholars, tech companies, and lawmakers, the case should also concern private citizens as well.

Email servers associated with Microsoft include Outlook, Live, and Gmail. Microsoft stores messages sent and recieved by its email users at “datacenters.” Although Microsoft does not disclose the exact number of datacenters it operates, the company confirms that there are between 10 and 100 worldwide.

In December 2013, in connection with a narcotics investigation, a judge in the Southern District of NY issued a search warrant related to a specific email account stored by Microsoft. Microsoft objected to the warrant to the extent that it sought information stored on servers at its datacenter in Dublin, Ireland. The company argued that the warrant requires a search and seizure outside of the United States and would violate Irish law.

Microsoft’s motion has been denied twice and is now pending before the NY Court of Appeals for the Second Circuit. The importance of the case should not be understated. Many tech companies filed amicus briefs arguing that the privacy of their customers will be violated if the government is allowed to gain access to this type of data. In opposition, the Department of Justice has argued that Microsoft’s position would severely undermine criminal investigations and, if Microsoft wins, service providers would be given permission to simply move and store information wherever they wished. They also argued that the location of the data is irrelevant and that the warrant was issued to Microsoft, not a specific location.

This legal battle implicates Fourth Amendment protection principles against unreasonable searches and seizures that are becoming increasingly common and critical in the digital age. Stay tuned.

Source: New York Law Journal

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