United States v. Microsoft Corporation

Whether a United States provider of email services must comply with a warrant under 18 U.S.C. 2703 to disclose material that the provider stored abroad.

Under 18 U.S.C. 2703 of the Electronic Communications Privacy Act, the government has the authority to require an electronic communication service provider to disclose information about a wire or electronic communication. Specifically, the government can issue a warrant using the procedures described in the Federal Rules of Criminal Procedure. The United States applied for a warrant to require Respondent to disclose email information from a particular user’s account. A federal magistrate judge issued the warrant, concluding that the United States established probable cause that the account was used to conduct criminal drug activity. Respondent disclosed the account records stored in the United States, but refused to disclose the contents of the emails, which it migrated to its data center in Ireland as a result of a business decision. Respondent argued that it would be an impermissible extraterritorial application of the statute to require it to disclose information located outside the country. The magistrate judge rejected Respondent’s argument, explaining that a Section 2703 warrant operates like a subpoena and it is a basic principle with respect to subpoenas that an entity must produce information in its control regardless of the location of that information. The district court affirmed. A panel of the Second Circuit reversed and held that enforcing the warrant for information stored abroad is an impermissible extraterritorial application of Section 2703. On petition to the United States Supreme Court, the United States argues that requiring a provider in the United States to disclose information to the government in the United States constitutes a domestic, not an extraterritorial, application of the statute.