As previously reported by E-TIPS Newsletter here, the US Department of Justice (DOJ) had petitioned for an en banc rehearing by the US Second Circuit Court of Appeals (the Court) after the Court concluded that it was not authorized under the Stored Communications Act to issue and enforce a warrant against US-based internet service providers for the disclosure of Microsoft’s customer email content stored on foreign servers.

In a narrow 4-4 decision, the Court denied the DOJ’s petition.  Judge Carney, who wrote for the three-judge panel in the underlying decision, defended the decision, arguing that the order qualified as an impermissible extraterritorial application of a statute that the US Congress must be presumed to have intended to apply only within the US.

The dissenting opinions argued that there was no extraterritorial reach required, as the data could be easily obtained from one of Microsoft’s computer terminals in the US.  The dissenting opinions also argued that the panel’s interpretation of the Stored Communications Act created a roadmap for hiding criminal activity.


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