Court Declines To Rehear Appeal, Agrees Microsoft Can’t Be Forced To Turn Over Email Stored Overseas

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Back in July, a federal appeals court took Microsoft’s side in a case over a contentious question: if you’re a U.S. company, storing a customer’s data on a server in another country, are you obligated to turn over all that data as part of a search warrant? Microsoft said no, and many years later, it appears that at the end of the appeals process, the court once and for all agrees.

This case has been in the works for a long time: Back in 2013, a judge signed off on a search warrant to be served on Microsoft, to get digital records regarding a specific email address as part of a drug case.

Microsoft responded with some data about the user, but said that the warrant was insufficient to compel them to share the rest, because it was stored outside of the U.S.

This turned into a many-years-long, back-and-forth legal battle, but the upshot is that in July, 2016, a federal appeals court sided with Microsoft and said that yes: where data is stored matters.

That ruling had tremendous implications, since we now live in the cloud storage era. Your data for basically every service you use is stored on servers around the world, in different countries and on different continents, and it only continues to get more scattered as time goes on and business deals change.

As you might imagine, limiting law enforcement’s access to your account to only the parts that are stored on domestic soil went over poorly with the law enforcement community. So the government tried to escalate its case, and requested an en banc hearing.

Usually, an appeal is heard by three judges out of however many sit on the bench of that Circuit. An en banc hearing is a kind of appeal that requests all the judges for the circuit — or at least, a majority number, higher than the original three — hear out the case.

The judges of the Second Circuit today denied that request, though, meaning the last ruling — that Microsoft doesn’t have to turn over stuff stored on servers in Ireland — stands.

In their opinions [PDF], though, the judges note that just because this is the law now doesn’t mean Congress can’t redraw the lines later one way or the other.

Microsoft seems to agree. In a statement welcoming the decision, Microsoft chief legal officer Brad Smith said, “We need Congress to modernize the law both to keep people safe and ensure that governments everywhere respect each other’s borders. This decision puts the focus where it belongs, on Congress passing a law for the future rather than litigation about an outdated statute from the past.”

Having been denied the en banc hearing they requested, government attorneys now have two options: petition the Supreme Court to hear the case, or give up. A spokesperson for the Justice Department told Politico that the DOJ is “reviewing the decision and its multiple dissenting opinions and considering our options” going forward.

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