Think that data stored in overseas data centers are outside the reach of U.S. law? Think again. A U.S. District Court judge in Manhattan has affirmed a magistrate’s ruling ordering Microsoft to give overseas-stored data to federal prosecutors.

Microsoft’s argument, wrote Judge James C. Francis, the magistrate whose ruling was affirmed, “is simple, perhaps deceptively so.” Because the jurisdiction of federal courts extends only to the geographical United States, Microsoft reasoned that it should not be required to deliver emails stored abroad to a federal prosecutor as part of a criminal subpoena. “Therefore, Microsoft concludes, to the extent that the warrant here requires acquisition of information from Dublin, it is unauthorized and must be quashed.”

Practical Considerations

U.S. District Judge Loretta Preska’s ruling came from the bench, so there is no documentation of it at this time; however, Judge Francis focused on the “practical consequences that would flow” from Microsoft’s rigid interpretation of American jurisdiction.

With the U.S. Supreme Court finally grasping that digital information is different from analog, meat-space information, the types of remedies available in the past for analog information are going to be less and less available. For in-house counsel, that means companies can no longer plead extraterritoriality when a subpoena shows up for documents stored on a server in another country.

Related Resources:

  • Grasping at Clouds: Documents Hosted Overseas and Grandy Jury Subpoenas (ABA Section of Antitrust Law)
  • What legal protections apply to e-mail stored outside the U.S.? (The Volokh Conspiracy)
  • 5 Reasons Microsoft’s Battle to Protect Cloud Data Matters (FindLaw’s Technologist)
  • The ECPA is So Bad Republicans, ACLU, Unify to Fix It (FindLaw’s Technologist)

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