eDiscovery Daily Blog

• October 17, 2017

A few months ago, we reported that the Department of Justice had asked the U.S. Supreme Court to overturn that landmark appeals court decision handed down last summer in favor of Microsoft Corp. that put their company data stored overseas mostly out of reach of U.S. law enforcement.  Yesterday, SCOTUS, at the urging of a whopping thirty-three states, agreed to take the case.

According to The Washington Post (Supreme Court to consider major digital privacy case on Microsoft email storage, written by Robert Barnes), the Supreme Court of the United States yesterday agreed to hear a dispute between the federal government and Microsoft about emails stored overseas.

The case that SCOTUS accepted on Monday began in 2013 when U.S. prosecutors got a warrant to access emails in a drug-trafficking investigation. It was served on Microsoft in Redmond, Wash. But the data sought was stored on its servers in Ireland. (The company has more than 100 centers in 40 countries.)

Microsoft turned over information it had stored domestically but contended that U.S. law enforcement couldn’t seize evidence held in another country. It said that if it was forced to turn over such information, it would lead to claims from other countries about data stored here.  A judge upheld the warrant, but a panel of the U.S. Court of Appeals for the Second Circuit overturned the ruling. The full circuit then split evenly on whether that decision was correct, and one judge wrote that the Supreme Court needed to provide the ultimate answer.

Thirty-three states also urged the court to take the case, U.S. v. Microsoft. They said that the decision has implications for other technology giants such as Google and Yahoo and that it was “remarkable” that the Second Circuit had held “that a private company has unfettered discretion to shield evidence of crime from law enforcement, simply by electronically sending that evidence out of the jurisdiction.”

Microsoft contended that the Stored Communications Act of 1986 (the law considered for this case and also the Google cases earlier this year where Google was ordered to comply with search warrants) did not imagine a world in which “a technician in Redmond, Washington, could access a customer’s private emails stored clear across the globe.”  “The current laws were written for the era of the floppy disk, not the world of the cloud,” Microsoft president and chief legal officer Brad Smith wrote.  He has a point there.

At Relativity Fest next week, I’m sure the topic will come up during our session e-Discovery in the Cloud, on Tuesday, October 24 at 11:00 am, moderated by David Horrigan, e-Discovery Counsel and Legal Content Director at Relativity where we will be joined by Rachi Messing, Senior Program Manager at Microsoft, Ari Kaplan, Principal at Ari Kaplan Advisors and Kelly Twigger, Founder of ESI Attorneys.  If you’re going to be there, you won’t want to miss that!

So, what do you think?  Should a 31 year old law determine whether data stored overseas (but accessed here) should be subject to subpoena?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Also, I’m excited to report that eDiscovery Daily has been nominated to participate in The Expert Institute’s Best Legal Blog Contest in the Legal Tech category!  Thanks to whoever nominated us!  We’re fading fast, but if you enjoy our blog, you can vote for it and still help it win a spot in their Best Legal Blogs Hall of Fame.  You can cast a vote for the blog here.  Thanks!

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