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When emails are stored abroad, can a US warrant reach them?

The U.S. Supreme Court has just heard arguments in a case involving emails Microsoft stores on servers in Ireland. In a 2013 drug trafficking case, Drug Enforcement Administration investigators sought the emails using a warrant authorized by the 1986 Stored Communications Act.

As we discussed earlier in this case, Microsoft contends that these domestic warrants do not apply abroad. Without a warrant valid in Ireland, it said, the company is prohibited from sharing the emails with the government. The 2nd Circuit Court of Appeals in Manhattan agreed that Stored Communications Act warrants cannot be applied abroad. The Trump administration appealed to the Supreme Court.

Both sides agree that the Stored Communications Act is out of date and did not envision international cloud storage. Both sides -- and indeed the justices -- urge Congress to pass a new law. A bill known as the Cloud Act has been introduced with the support of both Microsoft and the Trump administration. For now, however, both sides say the case must be decided in the absence of new legislation.

The Department of Justice argued for the government that the focus should not be on the physical location of the email servers. Instead, it said the warrant should be seen to apply in Washington, where Microsoft is headquartered. There, an employee could simply retrieve the emails from Ireland and hand them over to the DEA.

Moreover, the DOJ pointed out that Microsoft had voluntarily chosen to locate servers abroad -- probably not out of concern for Americans' privacy but for business considerations of its own. It could just as easily have chosen to store them in the U.S. and it was mere chance that they happen to be stored in Ireland.

Finally, the DOJ said that it was not simply requesting Microsoft's help but had gone to the trouble of obtaining a warrant -- what it called "the gold standard" for protecting defendants' rights and privacy.

Microsoft argues that it's not irrelevant that the emails are stored in Ireland. For one thing, the suspect in the case told Microsoft he was Ireland-based. For another, although no human operator in Ireland is required in the email retrieval process, the data will travel through wires in Ireland's sovereign territory.

Ultimately, the question may be whether domestic search warrants should apply in the sovereign territory of other nations simply because Microsoft happens to run servers there. Wouldn't a better remedy be for the government to get a warrant with greater reach -- or to negotiate with the Irish government for access rather than assuming our authority extends to their shores?

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