This post is written by Associate Editor Robert Lotz. Opinions and views expressed herein are those of the writer alone.
28 U.S.C. §§ 2701-2711 is the Stored Communications Act (“SCA”), originally enacted in 1986 to protect the privacy of people who store data on the internet. This aging statute is still the primary tool used by the Government to access data and records stored on the internet or the cloud. § 2703 of the SCA gives the legal framework for disclosing data and records to the Government. Courts are split on whether requiring a United States service provider to disclose data stored internationally is legally required by a SCA warrant.
The circuit split started on December 4, 2013, when a search warrant was authorized by United States Magistrate Judge Francis in the Southern District of New York for the search and seizure of information associated with a specified web-based e-mail account. The information requested was in the control of Microsoft, headquartered in Redmond, WA. Microsoft partly complied with the search warrant by disclosing the information that was stored on servers in the United States, but not internationally. However, Microsoft filed a motion seeking to quash the warrant to the extent that it directs the production of information stored abroad because the target account and content requested was hosted in Ireland. This motion was denied by the magistrate judge and he concluded that a SCA § 2703 warrant authorized the disclosure of “information that is stored on servers abroad.”
However, the Second Circuit reversed and found that “Congress did not intend the SCA’s warrant provisions to apply extraterritorially.” While the Second Circuit is the only appellate court to address this issue at the time of writing this, other district courts have faced this same question with differing analyses and outcomes. Some found that a SCA warrant requiring disclosure of data stored abroad does not implicate an extraterritorial application because copying or transferring the data is not a seizure and when a search does occur by law enforcement, it is done in the United States. Others found that the location of the data is of no concern because a SCA warrant’s relevant subject is the service provider’s location; not the location of the data.
On October 16, 2017, the Supreme Court granted certiorari to settle this matter and is still pending before the Court. First, the Government argues that it does not matter where data is stored because an SCA warrant is a domestic application of the statute. They argue it is a domestic application because the privacy of the user is not invaded until the Government receives the data in the United States because, Microsoft is free to move the data at any time and moving the data from server to server is not a search or seizure. Second, the warrant is directed toward the location of the service provider, not the location of the data. Lastly, as a policy reason, a criminal could evade a warrant by simply storing data abroad.
However, as common sense would tell us, American law is not international law. Microsoft argues that the issue of whether a United States service provider is required to disclose data stored abroad, pursuant to a SCA § 2703 warrant, is a policy question that should be answered by Congress rather than the judiciary system.  Otherwise, American law would be applied upon the international server. Further, it is the court’s job to interpret what Congress intended, not apply policy reasons or rational on why a law should be applied abroad. Interpreting whether a statute applies abroad is common sense in the fact that Congress does not state that certain conduct is a crime in the United States because it is clear that statutes do not apply abroad unless stated otherwise.
The government has provided policy arguments for why a court should enforce a SCA warrant. However, these policy reasons are only important when considering how to amend the SCA warrant provisions; not why a court should apply American law internationally without Congress’s approval.
This case has caught the attention and received amicus curiae briefs from 35 states, multiple foreign countries, and businesses from around the world. Additionally, all nine Supreme Court Justices voted to grant certiorari. Check out http://www.scotusblog.com/case-files/cases/united-states-v-microsoft-corp/ for updates.
 U.S. Dep’t of Justice, Office of Justice Programs, Bureau of Justice Assistance, Electronic Communications Privacy Act of 1986, Justice Information Sharing, https://it.ojp.gov/privacyliberty/authorities/statutes/1285 (last visited January 23, 2018).
 In re Two Email Accounts Stored at Google, Inc., No. 17-M-1235, 2017 U.S. Dist. LEXIS 101691, at *1-2 (E.D. Wis. June 30, 2017).
 In re United States for an Order Directing Provider of Elec. Commun. Serv. to Disclose Records to the Gov’t, 620 F.3d 304, 306 (3d Cir. 2010).
 The focus of the SCA statute determines where the application of the warrant takes place; compare Microsoft Corp. v. United States (in re Warrant to Search a Certain E-Mail Account Controlled & Maintained by Microsoft Corp.), 829 F.3d 197, 220 (2d Cir. 2016) (holding that privacy is the focus of the warrant provisions of the SCA), with In re Information Assoc. with [Redacted]@gmail.com, 2017 U.S. Dist. LEXIS 92601, *24-25 (D.D.C. June 2, 2017) (holding that disclosure is the focus of the SCA’s warrant provisions).
 In re A Warrant to Search a Certain E-Mail Account Controlled & Maintained by Microsoft Corp., 15 F. Supp. 3d, 467-68 (S.D.N.Y. 2014).
 Id. at 468.
 Microsoft, supra note 4, at 204.
 Microsoft, supra note 4, at 222.
 In re Search Warrant No. 16-960-M-01, 2017 U.S. Dist. LEXIS 15232, at *28-30 (E.D. Pa. Feb. 3, 2017).
 In re Info. Associated with One Yahoo Email Address that is Stored at Premises Controlled by Yahoo, No. 17-M-1234, 2017 U.S. Dist. LEXIS 24591 (E.D. Wis. Feb. 21, 2017).
 United States v. Microsoft Corp., 138 S. Ct. 356 (2017)
 Benz v. Compania, 353 U.S. 138, 147 (1957) (“[f]or us to run interference in . . . a delicate field of international relations there must be present the affirmative intention of the Congress clearly expressed. It alone has the facilities necessary to make fairly such an important policy decision where the possibilities of international discord are so evident and retaliative action so certain”).