TOPEKA – (July 31, 2017) – Kansas and 32 other states have asked the U.S. Supreme Court to decide whether email service providers can shield evidence of a crime from U.S. law enforcement by storing data on servers located outside the United States, Kansas Attorney General Derek Schmidt announced today.
The 33 states − led by Vermont – today filed a legal brief asking the U.S. Supreme Court to review and reverse a lower court’s decision involving Microsoft data stored on a foreign server. Under the Stored Communications Act (SCA), an email provider who receives a search warrant for evidence of a crime must disclose the requested data to the requesting law enforcement agency. But in this case, Microsoft argued compliance with the warrant was not required because the data was stored on a server outside of the United States. 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.
In the brief, Schmidt and the other attorneys general argue that email providers around the country are using the Microsoft decision to refuse compliance with search warrants issued under the SCA and similar state laws. That refusal allows the providers to refuse disclosure of evidence important in cases involving crimes committed in the United States; 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.”
In addition to Kansas, the other states joining the brief were Alabama, Arizona, Arkansas, Connecticut, Delaware, Hawaii, Idaho, Illinois, Indiana, Iowa, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Montana, Nebraska, New Hampshire, New Mexico, New York, North Carolina, Ohio, Oregon, Pennsylvania, South Carolina, South Dakota, Texas, Utah, Vermont, Virginia, and Wyoming and the Commonwealth of Puerto Rico.
A copy of the brief filed today in United States v. Microsoft is available at http://bit.ly/2uQYXHU.