US Magistrate Judge Rules Search Warrant May Include Email Account Hosted Overseas

By Darren Smith, Weekend Contributor

Microsoft LogoThere is an interesting ruling from U.S. Magistrate Judge James Francis in New York. The case stems from a search warrant sought by the government for the contents of an individual’s e-Mail account that was hosted by Microsoft but stored on a server located in Dublin, Ireland.

Magistrate Francis stated that internet service providers such as Microsoft or Google cannot refuse to turn over customer information and emails stored in other countries when issued a valid search warrant from U.S. law enforcement agencies.

In a statement, Microsoft said it challenged the warrant because the U.S. government should not be able to search the content of email held overseas.

“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,” the company said. “We think the same rules should apply in the online world, but the government disagrees.”

Microsoft determined that the target account is hosted on a server in Dublin and asked Francis to throw out the request, citing U.S. law that search warrants do not extend overseas.

Francis agreed that this is true for “traditional” search warrants but not warrants seeking digital content, which are governed by a federal law called the Stored Communications Act.

A search warrant for email information, he said, is a “hybrid” order: obtained like a search warrant but executed like a subpoena for documents. Longstanding U.S. law holds that the recipient of a subpoena must provide the information sought, no matter where it is held, he said.

Microsoft stated it would seek a review of Francis’ decision by a U.S. District Court Judge.

The case brings a new frontier in what is considered the scope of the statutory law and the constraints brought by the constitution in a new area of privacy and communication. But beyond this the ramifications resulting could be large, especially given the public outrage over the oversteps of the U.S. government in its reaching into searching all things electronic and the increasingly large net the government is being further revealed to be casting.

Aside from the concerns of US citizens might have if the ruling is allowed to become practice there would be a great disincentive for individuals residing outside the United States to subscribe to U.S. based internet providers under fear the US government will then be allowed access to their private information even if that information is stored in their home country. It could also be the case where citizens who might through the laws of their country have a greater expectation of privacy than in the US might still have their privacy compromised because their account is hosted by a US based provider. This issue likely will cost revenue for American companies and even for wholly owned subsidiaries that are actually based in those foreign nations.

If such a ruling is allowed to stand, one has to wonder if any server anywhere in the world is subject to search by the US government if any nexus is formed between the server and any entity in the US. And, more disturbingly, if a communication or Cloud Storage system even crosses the United States on one hop or route does that mean that it too is subject to the jurisdiction of the United States? In cloud computing networks multiple servers in various locations can hold part or all of the subject data and if the cloud is maintained even in a small part by a US entity the entire cloud might be subject to search.

There have been calls from several European government leaders to create a network that is completely separated from the internet due in large part to the NSA scandal and overreach by the United States Government. Rulings such as this will be considered to back such an initiative. To keep their citizens safe from the reach of the US, it is increasingly being proven that total physical and virtual isolation from the United States might be the best course of action to protect their citizens.

By Darren Smith


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18 thoughts on “US Magistrate Judge Rules Search Warrant May Include Email Account Hosted Overseas”

  1. This continues an extraterritorial trend that must be opposed and stopped.

    We had a federal judge in Miami sit on a treasury dept application for 10,000 “John Doe” subpoenas for about three years, taking briefs, but finally granting them. These court orders demanded lists with addresses, account numbers and funding details for any credit cards issued by foreign banks to American citizens, wherever residing in the world.

    Shortly after, NYAG Spurter Spitzer forbade all financial institutions with NYS branches from transferring money to any gambling enterprises offshore (which completely destroyed Antigua’s ambitious plan for economic development on tourism, gaming and internet gaming.) While at the same time NYS was running OTB offices all over the state!

    Now FATCO will bring the house down around these statist control freaks.

  2. I’m not sure you could withstand the intellectual debate for long there Paul. But keep it up.

    1. Actually I am Mr Keebler, but only at Daily Kos. Not sure who is Mr Keebler here.

  3. Nick Spinelli

    “so called terrorists.” To whom are you referring, Keebler?
    The ones the great Imagination In The Sky convinces the unaware to fear:

    It is common to have suspicious thoughts or worries about other people from time to time. These fears are described as paranoid when they are exaggerated and not based in fact. There are three key features of paranoid thoughts:

    you fear that something bad will happen
    you think that others are responsible
    your belief is exaggerated or unfounded.
    You are 35,079 times more likely to die from heart disease than from a terrorist
    You are 33,842 times more likely to die from cancer than from a terrorist
    obesity is 5,882 to 23,528 times more likely to kill you than a terrorist
    you are 5,882 times more likely to die from medical error than terrorism
    you’re 4,706 times more likely to drink yourself to death than die from terrorism
    you are 1,904 times more likely to die from a car accident than from a terrorist
    your meds are thousands of times more likely to kill you than Al Qaeda
    you’re 2,059 times more likely to kill yourself than die at the hand of a terrorist
    you’re 452 times more likely to die from risky sexual behavior than terrorism
    you’re 353 times more likely to fall to your death … than die in a terrorist attack
    you are 271 times more likely to die from a workplace accident than terrorism
    you are 187 times more likely to starve to death in America than be killed by terrorism
    you’re about 22 times more likely to die from a brain-eating zombie parasite than a terrorist
    you were more than 9 times more likely to be killed by a law enforcement officer than by a terrorist
    [being] “crushed to death by … [TV] or furniture” [as likely as] being killed by terrorist
    Americans are 110 times more likely to die from contaminated food than terrorism
    you are more likely to be killed by a toddler than a terrorist
    you [are] four times more likely to be struck by lightning than killed by a terrorist

    (Terrorism We Can Believe In? – 3). Nations are far more likely to die of paranoia than by terrorists.

  4. Utterly illegal order. The U.S. empire does not yet reach this far. More to the point, techies will move to assure such warrants have no teeth in the future. For those familiar with Silk Road, its replacement is hugely decentralized, almost to a fault, relying on a shared framework that arose after the Megaupload fiasco, another overreach by the U.S. government.

    These people need to be stopped. Many need to be thrown in jail.

  5. In a future all-digital world, if this ruling is not upheld, savvy bad actors would simply be careful to store all data on servers outside the U.S.

  6. Steve Fleischer: I´ve lived in Europe for 24 years and can unfortunately confirm your observations. I might add that young people looking to improve their English now choose to go to New Zealand, Australia or Canada. The USA is “out”.

  7. Charlton,

    The Irish government is most cooperative with the us when it comes to fighting the so called terrorist. But, since lots of companies have a haven in Ireland for basically tax avoidance on us owned companies, I think they may take a hard look at the implications.

    If I was Microsoft I’d be sweating bullets, especially if this warrant goes to tax scamming rather than avoidance. GE might have a similar issue on its world wide profits.

    This warrant is opening the intellectual property Pandora’s box.

  8. I am curious. What happens if the Irish government, or the Irish company, just tells the Magistrate to go commit a physical impossibility on himself?

    Are there any international law experts reading this story who can let us in on what options the judge has, and what options the owners of the servers have?

    1. Excellent question, Chuck. However, I think the servers are controlled by Microsoft, so they are on the hook.

  9. There seems to be a total lack of awareness of, or more likely, an arrogant disregard by U.S. judges and lawmakers for foreign sovereignty. Aside from the internet and privacy transgressions, look at FATCA and associated regulations.

    Visiting family in Europe in the 60’s and 70’s, there was a genuine affection for Americans and the U.S. Even during the Vietnam War, that affection continued.

    In the past 10 years, I have seen a real decline in that affection. Probably started with GW Bush; took a brief reversal when Obama was elected and then continued its decline (once the Europeans figured out that Obama was no different than Bush).

    Not coincidentally, many of the older people who remembered WW2, the Marshall Plan and the Berlin Airlift have died.

    As an example of FATCO consequences, many foreign banks now refuse to accept American customers. The paperwork, the hassles and the potential consequences are just too severe. FATCO essentially makes foreign banks agents of the IRS, with all of the downsides and no benefits.

    One other comment – have you entered the U.S. from abroad recently. The contrast between the Checkpoint Charlie atmosphere in a U.S. port of entry and the atmosphere in European customs offices is astounding.

    I didn’t visit the USSR years ago because it was a police state; I hear many Europeans expressing that same disdain for U.S. customs today.

  10. This is a magistrate making a big decision. We need a real judge or appellate court to weigh in on this.

    1. rafflaw – I agree. I am not sure why they are asking for a search warrant, why don’t they just call the NSA for whatever they want?

  11. This does not bode well for anyone. I sincerely hope Microsoft can get this overturned.

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