This column by ACRU General Counsel Ken Klukowski was published July 1, 2017 by Breitbart.
WASHINGTON, D.C. — The United States this week petitioned the Supreme Court to take a case to order Microsoft to turn over email records of one of its email customers, in a case pitting new technology that is global in reach against domestic law enforcement priorities.
Federal investigators seeking evidence in an email account of a suspected narcotics trafficker sought a search warrant pursuant to the Stored Communications Act. A federal judge issued the warrant to examine the email account of the suspected drug trafficker, but Microsoft Corporation, which is the email vendor for that person, refused to comply, saying that the emails are actually stored overseas, and that federal authority cannot reach them there.
The U.S. Court of Appeals for the Second Circuit agreed with Microsoft, holding that the Stored Communications Act does not have extraterritorial reach — which means reaching beyond U.S. borders to foreign lands — and therefore the warrants were illegal. The full Second Circuit deadlocked 4-4 on whether to rehear the case en banc.
Acting Solicitor General Jeffrey Wall petitioned the Supreme Court to hear the case. Now that the Court has entered its summer recess, it is expected to vote during the last week of September whether to take the case, which would then likely be argued in early 2018.
The case is United States v. Microsoft Corporation, No. 17-2.