Divided Appeals Court Denies DOJ's Review Request of Microsoft Case of Emails in Ireland
The 2nd U.S. Circuit Court of Appeals said it won't review a three-judge panel decision in July that upheld Microsoft's refusal to comply with a government search warrant to hand over a customer's emails stored in a server in Ireland…
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(see 1607140071 and 1610140037). The full court voted 4-4 with three judges recused, and without a majority favoring an en banc review, DOJ was denied a rehearing. At issue is the 1986 Stored Communications Act (SCA) that the panel said protects a user's privacy interests. That panel ruled Congress didn't intend the SCA's warrant provisions to apply extraterritorially. Concurring in the Tuesday order denying the review, Judge Susan Carney -- who also wrote the opinion in the three-judge decision in July -- said the court understands the "gravity" of law enforcement concerns that it "will less easily be able to access electronic data that a magistrate judge in the United States has determined is probably connected to criminal activity" as a result of the earlier decision. But she wrote "that in the absence of any evidence that Congress intended the SCA to reach electronic data stored abroad by a service provider (and relating potentially to a foreign citizen), the effect of the government's demand here impermissibly fell beyond U.S. borders and therefore the Microsoft warrant should be quashed." Judges Jose Cabranes, Christopher Droney, Dennis Jacobs and Reena Raggi dissented, each issuing an opinion. While everyone, including the government, agrees the SCA lacks extraterritorial reach, Jacobs said the information sought can be delivered in the U.S., which is "easily accessible" at a computer terminal here. Cabranes said the "negative consequences" of the majority opinion is far reaching because it burdens legitimate law enforcement efforts, creates a "roadmap" to facilitate criminal activity and hinders programs to protect national security. Microsoft President and Chief Legal Officer Brad Smith, who lauded the decision, said in an emailed statement that Congress needs "to modernize the law both to keep people safe and ensure that governments everywhere respect each other’s borders. This decision puts the focus where it belongs, on Congress passing a law for the future rather than litigation about an outdated statute from the past.” A DOJ spokesman emailed that the department is "reviewing the decision and its multiple dissenting opinions and considering our options.”