DOJ applies to take Microsoft data warrant case to Supreme Court

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The Justice Department on Friday filed a motion to take a landmark case about the limits of U.S. warrants in the information age to the Supreme Court.

The case, U.S. v. Microsoft, concerns whether data stored in a foreign server is under the jurisdiction of a U.S. warrant. A lower court had ruled that it was not – that law enforcement agencies would have to follow the same rules to obtain extraterritorial data as it would with physical evidence and seek the cooperation of a foreign government.

“The panel reached that unprecedented holding by reasoning that such a disclosure would be an extraterritorial application of the Act—even though the warrant requires disclosure in the United States of information that the provider can access domestically with the click of a computer mouse,” the DOJ argued in its filing. 

The court ruling raised a number of thorny legal issues and has spawned hearings in both the House and Senate, with both sides arguing that the ideal solution would be Congress updating the laws. 


In this case, Microsoft refused to deliver emails stored in Ireland to the DOJ based on a warrant, arguing instead that the DOJ had to petition Ireland under a joint agreement to share evidence known as a Mutual Law Enforcement Treaty (MLAT).

Microsoft argued successfully that if it was forced to hand over the emails it would be put in a situation where it may have to choose between obeying the laws of one nation or obeying the laws of another. 

The Justice Department argued that the search and seizure of the emails would not take place in Ireland. Instead, they would take place in America, where Microsoft accessed the data.

Though courts ruled with Microsoft in this instance, the DOJ subsequently won a similar case with Google.

Friday was the last day for the DOJ to apply to take the case to the Supreme Court. It had already received two extensions on the deadline to file. 

U.S. law makes it illegal for companies to share data stored on U.S. servers with foreign governments.

At both the House and Senate hearings, United Kingdom Deputy National Security Adviser Paddy McGuinness argued that the U.S. needed to ease restrictions on domestic data as well. 

Law enforcement agencies are motivated not to use MLATs for several reasons, including the time it takes for the process to complete. Requests for evidence can routinely be measured in months or years. 

Brad Smith, president and chief legal officer at Microsoft, wrote on a corporate blog Friday following the filing that “It seems backward to keep arguing in court when there is positive momentum in Congress toward better law for everyone.”

Smith later added, “Many of the challenges described here are rooted in a single question: Should people be governed by the laws of their own country?”

At a speech at The Heritage Foundation on Thursday, Google Senior Vice President and Chief Counsel Kent Walker proposed a potential legislative solution – that countries that agree to baseline privacy and human rights standards agree to a streamlined MLAT process. 

“We know that this will be an involved process. It’ll require action here in Washington and in capitals around the world. However, we can’t accept the complexity of action as a reason for inaction in addressing an important and growing problem,” he said.

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