One step on the path to challenging search warrant jurisdiction
Posted by David Howard
Corporate Vice President & Deputy General Counsel, Microsoft
The U.S. government doesn’t have the power to search a home in another country, nor should it have the power to search the content of email stored overseas.
To protect this principle, we filed a formal legal challenge months ago to a U.S. search warrant seeking customer email content that is located exclusively outside the United States. Today we received an initial decision that maintains the status quo but is a necessary step in our effort to make sure that governments follow the letter of the law when they seek our customers’ private data in the future.
When we filed this challenge we knew the path would need to start with a magistrate judge, and that we’d eventually have the opportunity to bring the issue to a U.S. district court judge and probably to a federal court of appeals. Today the Magistrate Judge, who originally issued the warrant in question, disagreed with our view and rejected our challenge. This is the first step toward getting this issue in front of courts that have the authority to correct the government’s longstanding views on the application of search warrants to content stored digitally outside the United States.
While the law is complicated, the issue is straightforward. It’s generally accepted that a U.S. search warrant in the physical world can only be used to obtain materials that are within the territory of the United States. A U.S. prosecutor cannot obtain a U.S. warrant to search someone’s home located in another country, just as another country’s prosecutor cannot obtain a court order in her home country to conduct a search in the United States. That’s why the U.S. has entered into many bilateral agreements establishing specific procedures for obtaining evidence in another country. We think the same rules should apply in the online world, but the government disagrees.
To be clear, we respect the critical role law enforcement plays in protecting all of us. We’re not trying to frustrate any government investigations, and we believe the government should be able to obtain evidence necessary to investigate a possible crime. We just believe the government should have to follow the processes it has established for obtaining physical evidence outside the United States.
Bringing these types of jurisdictional challenges is one of the data privacy commitments we made in December, and we’ll continue to pursue this issue because we believe we’re right on the law and because our customers have told us they value our privacy commitments.