SCA

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In a recent decision, the federal Court of Appeals for the Second Circuit (which covers New York, Connecticut,  and Vermont) affirmed the conviction of an Italian citizen for misdemeanor computer intrusion in violation of the Computer Fraud and Abuse Act of 1986 (CFAA). The decision is noteworthy in that, among other things, the Second Circuit…

On March 23, 2018, the President signed into law the Consolidated Appropriations Act of 2018 (H.R. 1625), an omnibus spending bill that includes the Clarifying Lawful Overseas Use of Data Act (the CLOUD Act). Among other provisions, the CLOUD Act amends the Stored Communications Act of 1986 (18 U.S.C. §§ 2701-2712, hereinafter the…

In an order issued on October 16, 2017, the U.S. Supreme Court granted certiorari in United States v. Microsoft Corporation, a case with potentially far-reaching implications for the privacy of electronic data maintained by technology companies across the globe.

The case, which Robinson+Cole has previously discussed here, here, and here, arises from a warrant obtained by the Department of Justice (DOJ) under the Stored Communications Act (SCA).[1] The SCA was enacted in 1986 to protect the privacy of electronic communications, including by extending privacy protections to electronic records analogous to those afforded under the Fourth Amendment to the U.S. Constitution.[2] In relevant part, the SCA requires a governmental entity in most instances to secure a warrant in accordance with the Federal Rules of Criminal Procedure to compel disclosure of electronic communications stored by a service provider.[3]
Continue Reading Supreme Court to Hear Microsoft Emails Case

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…

On June 23, 2017, the Office of the Solicitor General (OSG) filed a petition for a writ of certiorari with the United States Supreme Court requesting reversal of a 2016 decision in which the U.S. Court of Appeals for the Second Circuit quashed a warrant obtained by the Department of Justice (DOJ) under the Stored Communications Act (SCA) seeking the contents of a Microsoft customer’s emails.

In its July, 2016 decision in United States v. Microsoft Corp., a Second Circuit panel unanimously held that the DOJ’s attempt to procure the contents of the emails – which allegedly pertained to illegal drug trafficking – via an SCA warrant constituted an impermissible extraterritorial application of the SCA because the server on which the emails were stored was located in Ireland. The Second Circuit subsequently denied a request for an en banc rehearing in January, 2017 (see previous analysis of that denial here).
Continue Reading Solicitor General Urges Supreme Court Review of Second Circuit Microsoft Decision

On January 24, 2017, the U.S. Court of Appeals for the Second Circuit denied the Department of Justice’s request for an en banc rehearing in In the Matter of a Warrant to Search a Certain Email Account Controlled and Maintained by Microsoft Corp. a/k/a Microsoft Corp. v. United States (No. 14-2985). The denial leaves in place a controversial decision by a three judge panel that quashed a warrant obtained by the DOJ under the Stored Communications Act (SCA) seeking the contents of a Microsoft customer’s emails. The majority panel unanimously held on July 14, 2016 that the DOJ’s attempt to procure the contents of the emails via an SCA warrant constituted an impermissible extraterritorial application of the SCA because the server on which the emails were stored is located in Ireland.
Continue Reading Second Circuit Denies En Banc Rehearing in Microsoft Email Case