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 provision:
A provider of electronic communication service or remote
computing service shall comply with the obligations of this
chapter to preserve, backup, or disclose the contents of a
wire or electronic communication...
