On March 30, 2018, Solicitor General Noel J. Francisco filed a motion with the U.S. Supreme Court in United States v. Microsoft Corporation that seeks to vacate the judgment of the U.S. Court of Appeals for the Second Circuit in the case (which held in favor of Microsoft) and to remand the case with directions to dismiss it as moot. The motion was submitted in response to the passage of the CLOUD Act on March 23, 2018, and the Solicitor General’s subsequent letter to the Court on that same date prefacing its intent to submit a supplementary filing to address the effect of the CLOUD Act on the Court’s disposition of the Microsoft case (see previous discussion here).

In its motion, the government “respectfully submits that this case is now moot” because the CLOUD Act “resolves the question presented” by amending the Stored Communications Act (SCA), in part, to state that service providers subject to a court order issued under the SCA are obligated to produce information within their “possession, custody, or control” without regard to whether the information is stored within or outside of the United States. The government further discloses that following enactment of the CLOUD Act, the government actually obtained a new warrant thereunder, and consequently Microsoft’s objection that the prior warrant issued under the SCA impermissibly sought to compel extraterritorial action is no longer applicable.
Continue Reading Government and Microsoft In Agreement that Pending Case Mooted by CLOUD Act

On March 23, 2018, the President signed into law the Consolidated Appropriations Act of 2018 (H.R. 1625), an omnibus spending bill that includes the Clarifying Lawful Overseas Use of Data Act (the CLOUD Act). Among other provisions, the CLOUD Act amends the Stored Communications Act of 1986 (18 U.S.C. §§ 2701-2712, hereinafter the SCA) by adding a new § 2713 which states as follows:
Continue Reading Congress Enacts CLOUD Act within Omnibus Spending Bill to Address Overseas Storage of Electronic Data, Potentially Mooting Supreme Court’s Pending Microsoft Case

On January 24, 2016, the U.S. Court of Appeals for the Second Circuit denied the Department of Justice’s request for an en banc rehearing in In the Matter of a Warrant to Search a Certain Email Account Controlled and Maintained by Microsoft Corp. a/k/a Microsoft Corp. v. United States (No. 14-2985). The denial leaves in place a controversial decision by a three judge panel that quashed a warrant obtained by the DOJ under the Stored Communications Act (SCA) seeking the contents of a Microsoft customer’s emails. The majority panel unanimously held on July 14, 2016 that the DOJ’s attempt to procure the contents of the emails via an SCA warrant constituted an impermissible extraterritorial application of the SCA because the server on which the emails were stored is located in Ireland.

Continue Reading Second Circuit Denies En Banc Rehearing in Microsoft Email Case