US Can Now Search Foreign Servers

Posted by on Friday, November 7th, 2014
in Privacy Law

At the start of this summer a district judge in New York ruled that US authorities can access and search through electronic data stored by US companies on servers based outside the US.
Microsoft had plead the territorial limitations of a warrant issued to it by US law enforcement in respect of data held by the company on servers based in Ireland should bar access to a search in Ireland. The district judge did not accept this position finding that given the nature of the warrant and the practical implications of effectively ceasing enforceability of such warrants such territorial limitation was not warranted.

Microsoft had claimed US authorities powers to search and seize data stored by US companies in virtue of a warrant in virtue of the provisions of the Stored Communications Act (SCA) do not extend beyond the “territorial limits of the United States”.

Judge James Francis disagreed summarizing a ‘warrant’ under the SCA is not a conventional warrant, but is a hybrid: part search warrant and part subpoena. It is obtained like a search warrant, however it is executed like a subpoena. Thus it is served on the ISP in possession of the relevant information and not involve physical access to the premises of the ISP.
In practical terms, he found difficulties would arise if Microsoft’s arguments were accepted. Accepting the SCA imposes territorial restrictions on the power of US authorities to obtain information located outside the US would mean that the authorities would have to rely solely on mutual legal assistance treaties to obtain such information. This would entail a slow and laborious process, which may be ultimately unsuccessful in the event of the other country’s refusal to provide the requested information.
While it is true it would be cumbersome, the Judge’s conclusion “the practical implications thus make it unlikely that the Congress intended to treat [an SCA warrant] as a warrant for the search of premises located where the data is stored” does not, in my view, mean a US based SCA warrant could compel an otherwise foreign, non-US based party to provide such document disclosure.

That question is for now however unresolved and if the recent turn of events with FATCA is any indication it seems likely that parties with US ties may be compelled under an SCA warrant to provide documents no matter where they are hosted. The Internet really is shrinking the world…

By Robert T. Vangenne