Second Circuit Denies En Banc Rehearing Of Stored Communications Act Decision In Microsoft Case

Last summer, in a closely watched decision, the United States Court of Appeals for the Second Circuit quashed a warrant issued to Microsoft seeking a customer's electronic communications that the company had elected to store on a server in Ireland. As we reported at the time in a Kramer Levin Alert, a three-judge panel of the court declined to uphold the warrant, issued by a magistrate judge pursuant to the Stored Communications Act (SCA). The court concluded that requiring Microsoft to access the files stored overseas and turn them over to the government would amount to an extraterritorial application of the law. According to the panel, the SCA should not be applied extraterritorially because Congress had not expressed its intent for the SCA to apply outside of the United States. The panel further found that, in this particular case, the government was not seeking to apply the statute domestically because execution of the warrant would require the seizure of