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Microsoft invokes Supreme Court opinion in Ireland email case

John Ribeiro | June 23, 2016
The court has ruled that U.S. laws cannot apply overseas unless Congress clearly says so

Supreme Court

Microsoft believes its refusal to turn over email held in Ireland to the U.S. government got a boost from an opinion of the Supreme Court on Monday, which upheld that U.S. laws cannot apply extraterritorially unless Congress has explicitly provided for it.

In a decision Monday in a separate case on the extraterritorial application of a provision of the Racketeer Influenced and Corrupt Organizations Act (RICO), the Supreme Court set out the ground rules for its analysis, pointing out that “absent clearly expressed congressional intent to the contrary, federal laws will be construed to have only domestic application.” The court was applying a canon of statutory construction known as the presumption against extraterritoriality.

It stated that the “the question is not whether we think ‘Congress would have wanted’ a statute to apply to foreign conduct ‘if it had thought of the situation before the court,’ but whether Congress has affirmatively and unmistakably instructed that the statute will do so."

The statements by the Supreme Court, which were cited on Tuesday in a notice of supplemental authority in the U.S. Court of Appeals for the Second Circuit by Microsoft’s lawyer, E. Joshua Rosenkranz, appear to be in accordance with Microsoft’s own argument that nowhere did the U.S. Congress say that the Electronics Communications Privacy Act "should reach private emails stored on provider's computers in foreign countries."

The proceedings in this high-profile lawsuit have been rather slow, although a decision by the court is eagerly awaited because of its far-reaching implications.

Microsoft provided non-content information held on its U.S. servers in response to the search warrant, but tried to quash the warrant when it concluded that the account and the content of the mails were hosted in Dublin. The company favors instead an inter-governmental resolution to the U.S. demand for access to the emails, through the use of "mutual legal assistance treaties" that the U.S. has with other countries including Ireland.

In an earlier decision, U.S. Magistrate Judge James C. Francis IV of the U.S. District Court for the Southern District of New York had ruled that the warrant under the Stored Communications Act, a part of the ECPA, was "a hybrid: part search warrant and part subpoena." It is executed like a subpoena in that it is served on the Internet service provider, which is required to provide the information from its servers wherever located, but does not involve government officials entering the premises, Judge Francis ruled.

The government has argued that the MLAT procedure through inter-government collaboration is time-consuming, even though Ireland has offered to consider a request for the data under the treaty. Microsoft wants that Congress should be asked for a decision on whether warrants under the ECPA can be executed abroad.

 

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