In our previous installment, we looked at the issues related to Carpenter1. That discussion can be found here.

Another case involving the Stored Communications Act2 may also come before the U.S Supreme Court in the upcoming October term. In Microsoft3 the Court of Appeals for the Second Circuit found that the warrant did not apply to emails stored on a server in Dublin because there was no indication in the statute that Congress intended to authorize a search outside the United States.

On June 22nd, the Justice Department requested the Supreme Court to review that decision. They contend that the lower court's decision was "wrong, inconsistent with this court's framework for analysis of extraterritoriality issues, and highly detrimental to criminal law enforcement."

A factor in favor of granting review is that the Second Circuit's decision has not been followed by federal district courts in Philadelphia, San Francisco, Washington and Wisconsin, which have enforced warrants to produce email records that may have been stored abroad.

Microsoft is fighting the effort to apply the Stored Communications Act to electronic records held outside the United States, pointing out that the European Union's new General Data Protection Regulation scheduled to go into effect next year will make it illegal to transfer customer data from Europe to the United States. That could put global technology organizations like Google and Microsoft in the difficult position of balancing demands for greater privacy with efforts to investigate crime that could result in large fines for failure to comply.

Determining how digital information fits under a constitutional protection adopted when there were only "persons, homes, papers and effects" that could be searched, requires the Supreme Court to figure out the scope of privacy expectations in a very different world from the 18th century.

The House of Representatives adopted the Email Privacy Act 4 in February 2017 to modernize the protections afforded electronic communications that would require obtaining a search warrant in almost every case. That bill met resistance in the Senate last year when a provision was added to allow law enforcement to skip the warrant requirement in emergency situations.

Whether the legislation can get through the current Senate is a question for academic debate. Thus, the Supreme Court may have to establish the broad parameters of digital privacy while Congress tries to deal with the intricacies of a world of electronic communication.

Footnotes

1 United States v. Carpenter, 819 F.3d 880 (6th Cir. 2016), cert. granted, 17 Cal. Daily Op. Serv. 5214 (U.S. June 5, 2017)

2 18 U.S.C § 2073

3 Microsoft v. United States

[4] H.R. 387

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