Day

July 26, 2016

26 July 2016

Second Circuit Sides With Microsoft; Data Exclusively Stored On Foreign Servers Not Subject to SCA Search Warrant

On July 14, 2016, the U.S. Court of Appeals for the Second Circuit issued a long-awaited decision that—to the surprise of many observers—rejected the government’s construction of the Stored Communications Act (SCA) and instead embraced a more restrictive view that Microsoft had advanced, backed by much of the tech industry and many privacy groups.  Microsoft Corp. v USA, In the Matter of a Warrant to Search a Certain E‐Mail Account Controlled and Maintained by Microsoft Corporation (2d Cir. July 14, 2016)( Docket No. 14‐2985).  (Sidley Austin LLP represented a number of amici in support of Microsoft before the Court of Appeals and District Court.) The decision holds that electronic communications that are stored exclusively on foreign servers cannot be reached by U.S. prosecutors under the SCA’s warrant provisions—not even where the warrant is served on a U.S. provider that can access the foreign-stored information, and deliver it to U.S. officials, by using computers and personnel based here in the United States.

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