Oral Argument of the Microsoft eMail Appeal

September 5, 2015

In the world of Retained Data and forensics law, perhaps the most significant case on appeal is being argued this coming week at 10:00 A.M. on Wednesday, 9 September at the Thurgood Marshall U.S. Courthouse in New York City. In the rarefied world of LI law, it doesn’t get any better than this.

To make the event even more interesting and historic, this past Tuesday, Microsoft’s appellate counsel requested the presence of a Court Reporter to capture an entire record of the oral argument. The counsel for the United States consented, and the court on Thursday granted the request.

The court has allotted 12 minutes per side, but that could get stretched with questions from the three judges assigned to the case. The United States will be represented by Assistant U.S. Attorney, Justin Anderson, based in the Southern District of New York. Mr. Anderson’s U.S. Attorney’s office is one of most active in the country in dealing with law enforcement actions. Microsoft’ representation is by Joshua Rosenkranz of Orrick, Herrington & Sutcliffe. He is a seasoned appellate attorney who graduated from Georgetown Law and clerked for Supreme Court judges Brennan and Scalia, but with no experience on the law enforcement side.

The appeal is designated Case 14-2985, and named “In the matter of a Warrant to Search a certain E-mail account controlled and maintained by Microsoft Corporation.” On appeal, the parties are Microsoft Corporation, Appellant, v. United States of America, Appellee.

The long trek to the second circuit began in December 2013, when the James C. Francis, IV as the U.S. Magistrate Judge in U.S. District court in the Southern District of New York issued a search and seizure warrant (known as a SCA (Stored Communication Act) warrant) directed at a

MSN.COM email account controlled by Microsoft and based on probable cause. This evidence included eMails and any other records or identification information concerning account holder – an alleged narcotics dealer.

Microsoft complied with the search warrant to the extent of producing the non-content information stored on servers in the United States. However, after it determined that the target account was hosted in Dublin and the content information stored there, it filed a motion seeking to quash the warrant to the extent that it directs the production of information stored abroad. In an unusually thorough 27 page opinion, Judge Francis on 25 April 2014 denied Microsoft’s request.

What ensued over the subsequent months was a kind of legal and media frenzy that just kept getting bigger. The Magistrate Order was reviewed by the Chief U.S. District Court judge Loretta Preska who re-examined Microsoft’s arguments and ultimately ordered Microsoft to comply. In

the meantime, several other service providers and parties filed Amicus briefs joining Microsoft. Their collective argument was simple “U.S. Federal courts are without authority to issue warrants for the search and seizure of property outside the territorial limits of the United States.” The judicial response has been and remains equally straightforward – Microsoft’s argument is “undermined by the structure of the SCA, by its legislative history, and by the practical consequences that would flow from adopting it.” In simple terms, law enforcement would be left without one of the most fundamental evidential tools that have existed for hundreds of years.

In September 2014, Microsoft appealed the orders directing it to comply. Still more media fanfare, public relations initiatives, added amicus briefs, and paid consultant study efforts emerged to support Microsoft’s position. The briefs even included the Republic of Ireland and a Member of European Parliament.

A significant counter argument made by Microsoft and its supporters is that if U.S. law enforcement desires any evidence stored outside the country, it must make use of the burdensome and time consuming MLAT (Mutual legal assistance treaty) process. Almost everyone in the field, however, concedes that MLATs are not really feasible, and using them in

a rapid scaling world of cloud data center virtualization services, is essentially impossible. For these reasons, international technical standards used universally for obtained stored evidence require evidence handover by any service provider within the jurisdiction of competent authorities – irrespective of where the evidence might exist. The operative factor is “control,” and if a provider has control of the service being provided, compliance is required.

The arguments before the court on Tuesday will be largely based on the formal briefs submitted by the USA on 9 March, and by Microsoft on 8 April. The points argued are structured by the parties as follows:

United States of America

  1. The SCA requires the disclosure of records by warrant
  2. Nothing in the SCA’s text, structure, purpose, or legislative history indicates that compelled production of records is limited to those stored domestically
  3. Compliance with the Warrant Does Not Implicate the Presumption Against Extraterritoriality
  4. The warrant can compel Microsoft to Produce emails in the account regardless of who “owns” them
  5. Compliance with the warrant does not implicate any genuine conflict of laws that would raise comity concerns
  6. Policy considerations weigh against creating an easily abused loophole in the SCA’s comprehensive disclosure requirements


  1. The government seeks an impermissible extraterritorial application of ECPA
    • The government applies § 2703 where emails are stored, not where disclosure is compelled
    • The international discord the warrant has created confirms this would be an extraterritorial application of ECPA
  2. The government’s reliance on Marc Rich is misplaced
    • ECPA requires the “execution of a search warrant,” not compliance with a subpoena “hybrid” or “equivalent.” B. Marc Rich Does not apply to attempts to procure third parties’ private papers from abroad
  3. Only congress can decide whether and how to modify ECPA

What follows next could continue for many months. The three-judge appellate court will decide the matter over the next several months and release a decision. Assuming the likely outcome – that the USA wins – Microsoft could then appeal to the court “en banc” – before all the sitting judges. Assuming another adverse decision, Microsoft could appeal to the U.S. Supreme Court – which seems unlikely to be sympathetic to eliminating basic legal capabilities of law enforcement.