Can Evidence of a crime be shielded by storing emails on a foreign server? That is what a bipartisan coalition lead by VT. Attorney General T.J. Donovan is asking the US Supreme Court to decide. The coalition of 33 States including NH and Puerto Rico are supporting the U.S. Department of Justice’s request in United States v. Microsoft. In the case, a federal judge issued a search warrant, under the Stored Communications Act (SCA), authorizing a search of a specific Microsoft Outlook email account. The judge found probable cause to believe the email account was used to traffic narcotics in the United States.
Microsoft argued compliance with the warrant was not required because the data was stored on a server in Ireland and it would be an impermissible extraterritorial application, even though Microsoft could assess the data from their US offices. The Second Circuit US Court of Appeals agreed with Microsoft and quashed the warrant.
In Vermont, providers are refusing to disclose data to the Internet Crimes Against Children Task Force in cases involving the sexual exploitation of children. These refusals have occurred even when the suspect, victims and alleged crimes occurred in Vermont.
Vermont and the coalition of States argued in their brief that email providers around the country are relying on the Microsoft decision to refuse compliance with warrants issued under the SCA and similar state laws.