What to Watch as High Court Takes on Microsoft Warrant Row

February 26, 2018

Fenwick privacy counsel Hanley Chew talked to Law360 about arguments the U.S. Supreme Court will hear about the federal government's ability to access data stored abroad by Microsoft.

Chew told Law360 he expected the Court to focus on several legal and public policy issues to decide whether privacy rights or law enforcement needs should prevail.

The case centers around a Second Circuit decision that suppressed a warrant issued under the Stored Communications Act. The warrant would have forced Microsoft to produce customer email content data housed on a server located in Ireland.

"The justices are probably going to push on that aspect of the legal arguments, and will likely talk about how the search warrant is different than a subpoena, which under the established law if served on an American company would require it to produce all documents in its possession, control and custody, including records stored overseas," Chew said. 

Chew also talked about the U.S. government’s mutual legal assistance treaties with many countries that allow it to go through local authorities to obtain the data, but mentioned this process could be time-consuming and unpredictable.

"As a former federal prosecutor, I went through the MLAT process many times, and there were some cases where we never got anything and some cases where it took me years to get any information," Chew said.

The case is In the Matter of a Warrant to Search a Certain Email Account Controlled and Maintained by Microsoft Corp. The full article is available on Law360 (subscription required).​