Can The Prosecutors Obtain Your Emails Stored Overseas?

The people of Greenville and South Carolina are entitled to certain levels of privacy including the right to be free from unreasonable searches and seizures by law enforcement. Increasingly, issues with respect to privacy relate to what is on our smartphones, devices and computers. For example, if we are accused of a crime, do the police have the right to obtain copies of our emails? What if those emails are located on servers in another country? This is the issue that is currently before the US Supreme Court in the case of Microsoft vs. USA Today.

The decision from the court is expected in the next few weeks. Here is a quick rundown.

Greenville SC Criminal Law: Facts of Case — In The Matter of Certain Emails

The case underlying the Microsoft appeal is a case concerning drug-trafficking. US law enforcement expects that certain emails and other electronic communications between the accused drug traffickers will demonstrate intent to distribute and will also link various defendants in criminal conspiracies. Per usual procedure, the government sought a warrant for disclosure of the email and other electronic communications which was granted by the US District Court in the Southern District of New York. The relevant email accounts were controlled by Microsoft.

In response to the warrant, Microsoft turned over information that was stored on computer servers here in the US. However, much of the data — including the email cache — was stored on servers located in Ireland. Microsoft filed a motion to quash the warrant with respect to the information stored in Ireland. Microsoft argued that such violated long-standing rules that warrants issued in the US only applied to US territory and that Microsoft would be caught between competing governments and competing sets of laws with respect to data protection. However, the trial court rejected Microsoft’s arguments and ordered Microsoft to turn over copies of the data and emails. See In re Warrant to Search a Certain E-Mail Account, 15 F. Supp. 3d 466 (US Dist. SDNY 2014). The court held that

“Congress thus appears to have anticipated that an [internet service provider like Microsoft] located in the United States would be obligated to respond to a warrant issued pursuant to section 2703(a) by producing information within its control, regardless of where that information was stored.”

The court also concluded that, as a practical matter, limiting the effect of a warrant to data only stored in the US would unreasonably and severely impede government law enforcement efforts particularly since global data flows are instantaneous and more than a routine daily occurrence. That is, any imposition on companies like Microsoft would be minimal at best.

Greenville SC Criminal Law: Appeal Level and US Supreme Court Oral Argument

Microsoft appealed the trial court’s decision not to quash the subpoenas. In good news for the criminally accused, the US Court of Appeals in New York agreed with Microsoft and reversed the trial court. Matter of Warrant To Search Certain E-Mail Account, 829 F. 3d 197 (2nd Cir. 2016).That decision is now on appeal to the US Supreme Court and, as noted, a decision from the high court is expected soon.

Unfortunately, according to reports of the recent oral argument, the Supreme Court seems more inclined to agree with the trial court. As an example, Justices Anthony Kennedy and Sonia Sotomayor queried the Microsoft attorney on the fact that no physical activity occurs in Ireland. Rather, as they noted, transferring the data from Ireland requires keystrokes on computers here in the US by Microsoft employees located in the US.

Greenville SC Criminal Defense Attorneys: Contact The Law Office Of H. Chase Harbin Today

The issues raised in the Microsoft case may seem “far off” and not very relevant to citizens living here in Greenville. But such is not the case. Anything that makes it easier for law enforcement and the prosecutors to seize your emails and communications, diminishes your rights under the US and South Carolina Constitutions. The skilled and experienced Greenville SC criminal defense attorneys at the Law Office of H. Chase Harbin are hopeful that the US Supreme Court will uphold limitations on the extra-territorial application of a warrant issued in the US. If you have been arrested or charged with a crime, call our office immediately. Contact us today via email or by phone. We have offices in Greenville and Pickens, South Carolina.