Information Privacy Law
Professor Ira Rubinstein
April 3, 20
Last year, Second Circuit in Microsoft Corp. v. United States 829 F.3d 197 (2d Cir. 2016) held that the government cannot compel Internet Service Providers (ISPs) to turn over data that is stored overseas. The court rules that government cannot do so even with a warrant.
In December 2013, Judge Francis of the Southern District of New York issued a warrant under the Stored Communications Act 18 U.S.C. §§ 2701–2712 for the email content associated with a Microsoft Network email address. Microsoft agreed and handed over responsive non-content data that were stored in the United States. However, as for the requested content information that was stored in a Microsoft server which was located in Ireland, Microsoft believed the data in Ireland was not in the jurisdiction of the warrant. Thus, Microsoft refused to hand over the data and moved to quash the warrant.
The court held that the applying SCA’s warrant provisions extraterritorially was not the Congress intention. Rather the intention of those provisions is to protect user’s privacy interests. Therefore, the SCA does not authorize a United States court to issue and enforce an SCA warrant against a United States-based service provider for the contents of a customer’s electronic communications stored on servers located outside the United States.
This case well indicated the phenomenon that law failed to keep pace with new technology and the dilemma the court face when applying old laws to modern technology. Whether the court should appreciate the unique and novel aspects of technology and manage to adapt legal rules and definitions to modern technology or just simply follow the old rulings.
However, it is my opinion that when it comes to new technology, merely applying existing legal rule or guessing the intention of the Congress is not enough. It could lead to delaying enactment and implementation of appropriate law regulations for new technology.