Francis IV, James C., United States Magistrate Judge
Microsoft moved to quash a search warrant issued under the Stored Communications Act (SCA) authorizing the search and seizure of information associated with a user’s email account hosted with Microsoft and stored on a server located in Ireland. The district court held that the warrant did not violate a presumption against extraterritorial application of U.S. laws and denied Microsoft's motion.
Microsoft argued that the information sought by the government's warrant was unauthorized because federal governments are without the authority to order a search and seizure of property outside the territorial limits of the U.S. The government argued that the SCA authorized them to secure a warrant requiring Microsoft to disclose the content in its electronic storage, and although the term "warrant" was used, the resulting order was not a conventional warrant but rather part search warrant and part subpoena.
The court stated that the test for production of documents was control, not the location of documents, and if the subpoenaed party has the practical ability to obtain the documents, then the actual physical location of the documents, even if located abroad, is immaterial. The court found that Microsoft was a provider located in the U.S. and had control over the information sought in the warrant. As such, the warrant did not violate a presumption to apply the laws of the U.S. and the court denied Microsoft's motion to quash.
Counsel
Justin A. Anderson, Lorin L. Reisner, Serrin Andrew Turner, U.S. Attorney's Office, New York, NY, for Plaintiff.MEMORANDUM AND ORDER
A governmental entity may require the disclosure by a provider of electronic communication service of the contents of a wire or electronic communication, that is in electronic storage in an electronic communications system for one hundred and eighty days or less, only pursuant to a warrant issued using the procedures described in the Federal Rules of Criminal Procedure ... by a court of competent jurisdiction.
The Committee also recognizes that computers are used extensively today for the processing and storage of information. With the advent of computerized recordkeeping systems, Americans have lost the ability to lock away a great deal of personal and business information. For example, physicians and hospitals maintain medical files in offsite data banks, businesses of all sizes transmit their records to remote computers *473 to obtain sophisticated data processing services.... [B]ecause it is subject to control by a third party computer operator, the information may be subject to no constitutional privacy protection.
With respect to such an exercise of authority, there is no question of international law, but solely of the purport of the municipal law which establishes the duty of the citizen in relation to his own government. While the legislation of the Congress, unless the contrary intent appears, is construed to apply only within the territorial jurisdiction of the United States, the question of its application, so far as citizens of the United States are concerned, is one of construction, not of legislative power.
The Government [did] not seek a garden-variety search warrant. Its application request[ed] authorization to surreptitiously install data extraction software on the Target Computer. Once installed, the software [would have] the capacity *477 to search the computer's hard drive, random access memory, and other storage media; to activate the computer's built-in camera; to generate latitude and longitude coordinates for the computer's location; and to transmit the extracted data to FBI agents within this district.