We've had some discussion concerning the NSA and its defenders arguing that the 4th Amendment doesn't apply
outside of the US, but it seems they also believe that the US jurisdiction applies basically anywhere when they want it to. While we recently wrote about magistrate judges pushing back
on overly broad requests for information, that clearly is not absolute. Magistrate judge James Francis recently ruled that Microsoft needs to turn over data held on servers in Dublin
, even though a US warrant isn't supposed to apply outside the US. Microsoft, quite reasonably, sees this as a problem:
"A U.S. prosecutor cannot obtain a U.S. warrant to search someone's home located in another country, just as another country's prosecutor cannot obtain a court order in her home country to conduct a search in the United States," the company said. "We think the same rules should apply in the online world, but the government disagrees."
As does the judge. The judge's own explanation is basically that he's pretending the warrant is not a warrant
, but a subpoena.
Francis agreed that this is true for "traditional" search warrants but not warrants seeking digital content, which are governed by a federal law called the Stored Communications Act.
A search warrant for email information, he said, is a "hybrid" order: obtained like a search warrant but executed like a subpoena for documents. Longstanding U.S. law holds that the recipient of a subpoena must provide the information sought, no matter where it is held, he said.
If the Stored Communications Act sounds familiar, that's because it's a part of ECPA
, the horribly outdated law that we've been discussing for years concerning its need for reform. If this ruling stands (and Microsoft is already challenging it), it'll be just one more thing that ECPA reform needs to tackle.