On Wednesday, the 2nd Circuit Court of Appeals will hear arguments as to whether or not US law enforcement can compel companies to turn over data held on foreign soil. This dispute was started when law enforcement executed a warrant against Microsoft, demanding they turn over particular emails. Because the emails were stored on Irish servers, Microsoft insisted they would need a warrant from an Irish court. Microsoft lost the case at the district court level last year, with the judge deciding that it only mattered if the company has access to the records, not where they are stored.
The Obama administration has argued that the request is more like a subpoena for records than an actual search warrant, because US employees of Microsoft have access to the records. “A corporation cannot resist compliance with a subpoena merely on the ground that the responsive records are stored abroad,” the government stated. Microsoft contends that executing unilateral law enforcement actions on the soil of sovereign nations could cause serious foreign policy concerns. Microsoft also argues that this would open the door for foreign governments, such as Russia or China, to gain access to data stored on American soil.
Hundreds of organizations and individuals have filed briefs in support of Microsoft’s case, including the American Civil Liberties Union and the US Chamber of Commerce. Some companies, like Verizon and Cisco, have stated in their briefs that their businesses could be harmed if users believed that their data could be seized by American investigators even if they live in another country. News organizations like The Washington Post and Fox News have also filed briefs expressing their concern that US law enforcement could gain access to journalists’ private notes anywhere in the world.
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