U.S. solicitor general's office at Main Justice. Credit: Mike Scarcella/ ALM

The U.S. Justice Department has obtained a new search warrant against Microsoft Corp. to obtain email content stored at a company server in Ireland, the latest move in a privacy dispute that went before the U.S. Supreme Court in February.

U.S. Solicitor General Noel Francisco told the high court about the new warrant in a brief that also urged the justices to declare the case United States v. Microsoft “is now moot.”

Microsoft, represented by Orrick, Herrington & Sutcliffe, had challenged an earlier warrant aimed at obtaining the emails of an unnamed suspected drug dealer. The company asserted that because the data was stored outside the United States, the warrant exceeded the jurisdictional reach of the Justice Department.

Both sides in the case—as well as several justices during the February 27 argument—suggested Congress could remedy the issue of extraterritoriality if it passed a new law that balanced law enforcement needs with sovereignty concerns.

“Wouldn't it be wiser just to say, 'Let's leave things as they are,' Justice Ruth Bader Ginsburg asked during the argument. “If Congress wants to regulate in this brave new world, it should do it.” Ginsburg asked.

On March 23, Congress passed, and the president signed, a statute called the CLOUD Act that would allow law enforcement to obtain emails within a U.S. provider's control, even if the content is stored outside the United States. The law also includes a “comity analysis” that could block the warrant if, under the circumstances, the laws of the country of storage would be violated.

Francisco said the new warrant was obtained March 30, partly as a way of avoiding issues of retroactivity of the new law, and also because Microsoft did not move quickly to turn over the information sought in the original warrant after the CLOUD Act became law.

“Because Microsoft has thus far refused to comply with the original warrant,” Francisco wrote, “the government has determined that the most efficient means of acquiring the information sought is through a new warrant under the CLOUD Act.”

Francisco also urged the court to vacate the ruling by the U.S. Court of Appeals for the Second Circuit that favored Microsoft in the dispute. Leaving the Second Circuit ruling in place would “generate uncertainty in future extraterritoriality, Fourth Amendment, or subpoena cases arising in the Second Circuit,” the motion states.

Microsoft's lawyer, Orrick partner E. Joshua Rosenkranz, on Sunday declined to comment on the government's motion, but indicated that a response would be filed with the court this week.

 

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