Editor’s note: This article is the second in a two-part series.
In last week’s column, I looked at the Second Circuit’s opinion in In the Matter of a Warrant to Search a Certain Email Account Controlled and Maintained by Microsoft, No. 14-2985 (2d Cir. July 14, 2016), where the court held that a warrant issued under Section 2703 of the Stored Communications Act (SCA), 18 U.S.C. Section 2701, could not compel Microsoft to produce to the government copies of electronic data stored in Ireland, even though that data could easily be accessed by a user in the United States. Analysis of the opinion reveals that the physical trespass found to be of no moment in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507 (1967), which held that law enforcement needed a search warrant to conduct a wiretap, and which announced, proves to be the deciding factor for the court. Such analysis raises the question of whether jurisprudence regarding electronic data is evolving, devolving, or simply incoherent.
Analysis
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