ALBUQUERQUE — Attorney General Hector Balderas has joined a bipartisan coalition of 33 states and Puerto Rico to support the U.S. Department of Justice’s request in United States v. Microsoft, that the U.S. Supreme Court decide whether email service providers can shield evidence of a crime from law enforcement by storing data outside the United States.
“New Mexico’s Internet Crimes Against Children Task Force does critical work protecting our children and we hope that the Supreme Court agrees with our law enforcement coalition so that work is not jeopardized,” Attorney General Balderas said.
In the Microsoft case, a federal judge issued a search warrant under the Stored Communications Act (SCA), authorizing the search of a specific Microsoft Outlook email account. The judge found probable cause to believe the account was being used to traffic narcotics in the United States. An email provider who receives a warrant under the SCA for evidence of a crime must disclose the requested data to the law enforcement agency. In this case, Microsoft argued compliance with the warrant was not required because the data was stored on a server in Ireland.
Microsoft asserted it would be an impermissible extraterritorial application of the SCA to require the company to retrieve data from a foreign server, even though Microsoft could access that data from its offices in the United States. The U.S. Court of Appeals for the Second Circuit agreed with Microsoft and quashed the warrant. The federal government has asked the U.S. Supreme Court to review and reverse the Second Circuit’s decision.
The coalition of states argued in the brief that email providers around the country are relying on the Microsoft decision to refuse compliance with warrants issued under the SCA and similar state laws. Providers are refusing to disclose data to the Internet Crimes Against Children Task Force in cases involving the sexual exploitation of children. The only foreign aspect of these cases is the location of the server where the provider has chosen to store its customers’ data. The brief argues that the Supreme Court’s review “is necessary to address the Second Circuit’s remarkable conclusion that a private company has unfettered discretion to shield evidence of crime from law enforcement, simply by electronically sending that evidence out of the jurisdiction.”
The amicus curiae brief was joined by New Mexico, Alabama, Arizona, Arkansas, Connecticut, Delaware, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Montana, Nebraska, New Hampshire, New York, North Carolina, Ohio, Oregon, Pennsylvania, South Carolina, South Dakota, Texas, Utah, Vermont, Virginia, Wyoming, and the Commonwealth of Puerto Rico.
Click here for a copy of the brief