The U.S. Supreme Court recently indicated that it will consider the federal government’s petition for a writ of certiorari in United States v. Microsoft Corp. at its conference scheduled for October 6, 2017. United States v. Microsoft is a “cutting edge” case that concerns the ability of law enforcement to obtain electronic documents stored abroad via a warrant issued under the Stored Communications Act of 1986 (SCA).

In 2016, a panel of the U.S. Court of Appeals for the Second Circuit unanimously quashed an SCA warrant issued to the Department of Justice that sought the contents of a Microsoft customer’s emails stored on a server in Dublin, Ireland. In January 2017, the Second Circuit subsequently denied a request for an en banc rehearing (see our previous analysis of that decision here). In June 2017, the Office of the Solicitor General (OSG) filed a petition for a writ of certiorari with the Supreme Court requesting reversal of the Second Circuit’s decision (see previous analysis here).

In subsequent briefs filed in support of and in opposition to the petition for certiorari, the OSG and Microsoft duel on three intersecting claims regarding the suitability of this case for Supreme Court review:

  1. Whether Congress, and not the Judiciary, is the proper branch of government to address the acknowledged shortcomings of a law enacted in 1986 used to police 21st-century technological issues such as cloud-computing;
  2. Whether the Second Circuit properly determined that the Supreme Court’s extraterritoriality test supports its finding that the storage of the emails in Ireland, and not the compelled disclosure of the emails that would take place in the United States, was the focus of the SCA and thus the proper consideration in determining that the government sought extraterritorial application of the SCA; and
  3. Whether the legal conflict at issue is a proper vehicle for the Supreme Court to consider when there is currently no circuit split regarding extraterritoriality and the SCA, or whether the issue needs to further “percolate” at the circuit court level before the Supreme Court weighs in.

Of note, the OSG’s reply brief (distributed September 13) emphasizes the harmful effects the Second Circuit’s decision has allegedly had on law enforcement investigations, and also states that eleven district court and magistrate judges have “uniformly rejected” the Second Circuit holding in litigation involving SCA warrants for accounts held by Google and Yahoo!. Interestingly, the OSG also revealed that Google recently reversed its legal stance on SCA warrants and notified the government that it would now comply with such warrants (outside of the Second Circuit), provided that it will also appeal the adverse decisions to which it is a party. This revelation puts holders of Google accounts on notice that Google may accede to a demand for electronic documents stored abroad under an SCA warrant, and reiterates the importance that a Supreme Court decisions could have in the instant case. That said, it remains to be seen whether the Supreme Court will in fact take up the petition.