You've Got (Foreign) Mail: Can Law Enforcement Get To It?

Even though Microsoft is a U.S. corporation subject to domestic subpoenas and warrants, prosecutors are not entitled to emails stored on its servers abroad, the Second Circuit ruled last week in Microsoft Corp. v. United States, 14-cv-2985. In a majority opinion by Judge Carney, the Court held that warrants under the Stored Communications Act ("SCA") are limited to emails stored on domestic servers. Notably, in a concurring opinion, Judge Lynch urged Congress to reassess the SCA for the purpose of balancing privacy and foreign policy interests against contemporary law enforcement needs.

Statutory and Factual Background

Enacted as part of the Electronic Communications Privacy Act in 1986, long before the rise of webmail and cloud storage, the SCA was designed to "protect[] the privacy of the contents of files stored by service providers and of records held by service providers," extending "protections analogous to those provided by the Fourth Amendment." Decision at