Tech Tips, 0618 WYBJ, Vol. 41 No. 3. 56

Author:Blake A. Klinkner The Klinkner Law Firm, LLC Cheyenne, Wyoming.
Position:Vol. 41 3 Pg. 56

Tech Tips

Vol. 41 No. 3 Pg. 56

Wyoming Bar Journal

June, 2018

An Impatient Congress Passes the CLOUD Act to Clarify the Extraterritoriality of Warrant Applications for Emails and Other Digital Records Stored Abroad

Blake A. Klinkner The Klinkner Law Firm, LLC Cheyenne, Wyoming.

I recently wrote about an important case before the United States Supreme Court that would decide whether warrant powers may extend to U.S.-based email accounts which happen to contain individual emails stored on foreign computer servers.[1] In United States v. Microsoft, the United States obtained a warrant directing Microsoft to seize and produce emails belonging to a suspected narcotics trafficker.[2] Microsoft produced responsive emails which were stored on computer servers located in the United States, but refused to produce responsive emails which happened to be stored on servers located in Ireland. While recognizing that warrant powers could not extend to property outside of the United States, the district court ruled that the production of emails stored on computers overseas does not implicate an extraterritorial search because the produced emails would not be viewed until their download by officials located on U.S. soil. The district court denied Microsoft's request to quash the warrant, but the United States Court of Appeals for the Second Circuit thereafter granted Microsoft's motion to quash the warrant, ruling that because the emails were stored on computers overseas, the warrant required an extraterritorial application which was prohibited by Congress.[3] Thirty-three states joined the United States in requesting that the Supreme Court review the Microsoft decision, and the Supreme Court granted certiorari to resolve this important issue.[4]

After the parties argued their positions before the Supreme Court, Congress decided that it would take matters into its own hands and resolve this controversy without waiting for the Supreme Court to weigh in. On March 23,2018, Congress enacted and President Trump signed the Clarifying Lawful Overseas Use of Data Act, more commonly known as the "CLOUD Act."[5] The CLOUD Act amended the Stored Communications Act by adding the following...

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