At the end of April, a magistrate judge of the Southern District of New York denied a motion filed by Microsoft for the quashing of a search warrant issued under the Stored Communications Act (the Act). Microsoft had argued that the warrant should be quashed because the data concerned was stored in Ireland, and the Act did not authorize U.S. courts to issue extraterritorial warrants.

Under the provisions of the Act, the U.S. government can require information from Internet Service Providers (ISPs) in three ways: by subpoena, court order or warrant. The method chosen determines the extent of the information that an ISP is required to provide. In this case, the warrant ordered Microsoft to disclose extensive information, including:

  • The contents of all emails stored in the account
  • Records and information regarding the identification of the account (including everything from the user’s name to their method of payment)
  • All records stored by the user of the account, including pictures and files
  • All communications between Microsoft and the user regarding the account

Denying the motion, the judge stated that although the language of the Act was ambiguous, the interpretation advanced by Microsoft would be inconsistent with the Act’s structure and legislative history. In addition, the judge pointed to the practical consequences if Microsoft’s motion were upheld, noting that the burden on the government would be “substantial”, and that it would lead to reliance on a Mutual Legal Assistance Treaty which “generally remains slow and laborious”.

Microsoft’s robust stance on this issue comes at a time when ISPs face increasing public and political scrutiny of their dealings with investigatory agencies. Following the ruling, Microsoft Corporate VP and Deputy General Counsel David Howard stated, “the US Government doesn’t have the power to search a home in another country, nor should it have the power to search the content of email stored overseas.” It appears that Microsoft intends to take this issue further, with Howard noting that the path of the legal challenge could “bring the issue to a US district court judge and probably to a federal court of appeals.”