Supreme Court will consider a 1986 law about phone records and how it applies to emails in 2017 outside the US

17 October 2017 Internet, IT & e-Discovery Blog Blog
Authors: Peter Vogel

The New York Times reported that the US Supreme Court will consider a case against Microsoft to “decide whether federal prosecutors can force technology companies to turn over data stored outside the United States.”  In 1986 Congress passed the Stored Communications Act (SCA) to control telephone records long before the Internet we know today, but the SCA is the main law that Internet companies rely to protect users’ content and in 1986 in passing the SCA “Congress focused on providing basic safeguards for the privacy of domestic users.”

The New York Times October 16, 2017 article entitled “Justices to Decide on Forcing Technology Firms to Provide Data Held Abroad” included this background on the case:

The case, United States v. Microsoft, No. 17-2, arose from a federal drug investigation. Prosecutors sought the emails of a suspect that were stored in a Microsoft data center in Dublin. They said they were entitled to the emails because Microsoft is based in the United States.

A federal magistrate judge in New York in 2013 granted the government’s request to issue a warrant for the data under a 1986 federal law, the Stored Communications Act. Microsoft challenged the warrant in 2014, arguing that prosecutors could not force it to hand over its customer’s emails stored abroad.

A three-judge panel of the United States Court of Appeals for the Second Circuit, in Manhattan, ruled that the warrant in the case could not be used to obtain evidence beyond the nation’s borders because the 1986 law did not apply extraterritorially. In a concurring opinion, Judge Gerard E. Lynch said the question was a close one, and he urged Congress to revise the 1986 law, which he said was badly outdated.

The result of this case may change how Internet jurisdiction, privacy, or lead to congressional changes to the SCA.

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