Facebook, Google, Apple and other large companies host a significant amount of their data outside the United States. Should the Department of Justice’s warrants under the Stored Communications Act extend beyond domestic borders? The DOJ has asked the Supreme Court to consider the matter this fall.
According to a recent Crowell & Moring alert, U.S.-based technology companies have resisted such warrants for their data in other countries, claiming it’s an “extraterritorial application of the law,” which Congress has not allowed.
Court decisions on Stored Communications Act warrants have varied.
While the Second Circuit held in Microsoft Corp. v. United States that the U.S. Government cannot compel the production of data stored on a server abroad (the decision that the DOJ is asking the Supreme Court to review), a federal magistrate in In the Matter of the Search of Content That is Stored at Premises Controlled by Google ordered Google to comply with the government’s warrant for its data held outside the country. A U.S. District Judge recently upheld this decision, calling the warrant a “domestic application” of the statute as the data is accessible from the United States.
Said Crowell & Moring:
“The rulings create a great deal of uncertainty for businesses moving and storing data around the world, a challenge that is further complicated by the fact that Congress is considering updating the law, though the precise direction remains unclear.”
If the Supreme Court hears the Microsoft case, it may kick it back to Congress to update the 30-year-old law — something, says Crowell & Moring, that is called for given the current advancements in technology and explosion in data.