Orrick Scores a Victory for Microsoft

July.15.2016

The Second Circuit U.S. Court of Appeals has sided with Microsoft and its Orrick appellate team in a fight to prevent the U.S. government from unilaterally searching private emails stored in foreign countries, without notice to or the cooperation of the country where the emails are stored.

A three-judge panel, without dissent, overturned the lower court order requiring Microsoft to act on the government’s behalf and to scour customer emails stored on a server in Dublin, Ireland, without any notice to or permission from the Irish Government or the customer. The appeals court backed Microsoft’s argument that the Stored Communications Act warrant power, used as the basis by the Government to mandate Microsoft’s compliance, does not extend to data exclusively stored overseas.

“We see no reason to believe that Congress intended to jettison the centuries of law requiring the issuance and performance of warrants in specified domestic locations, or to replace the traditional warrant with a novel instrument of international application,” Judge Susan Carney wrote for the court.

Led by Orrick partner Josh Rosenkranz, who heads the firm’s U.S. Supreme Court and Appellate practice, the team succeeded in establishing a clear precedent preventing unilateral forays into private data stored overseas under the SCA, and discouraging similar intrusions into the US by other countries. In its opening brief in the case, Microsoft explained that if our government could issue such unilateral warrants reaching data held abroad, other countries could be expected to likewise assert similar power to access the emails of U.S. citizens held domestically. The brief warned: “If the government prevails here, the United States will have no grounds to complain when foreign agents _ be they friend or foe _ raid Microsoft offices in their jurisdictions and order them to download U.S. citizens’ private emails from computers located in this country.”

Microsoft, in a statement, hailed the decision. “We obviously welcome today’s decision by the United States Court of Appeals for the Second Circuit,” the company said. The decision is important for three reasons: it ensures that people’s privacy rights are protected by the laws of their own countries; it helps ensure that the legal protections of the physical world apply in the digital domain; and it paves the way for better solutions to address both privacy and law enforcement needs.”

Microsoft received strong backing in the Second Circuit, including dozens of major technology and media companies, trade associations and advocacy groups signing on to amicus briefs. The government of Ireland and 35 of the nation’s leading computer scientists also supported Microsoft’s position.

In addition to Josh, the Orrick team includes partner Bob Loeb, senior appellate associate Brian Goldman and former associate Susannah Weaver. The Orrick team worked collaboratively on this matter with Jim Garland and Alex Berengaut from Covington & Burling.