On October 16, 2017, the U.S. Supreme Court granted the U.S. government’s request for review of a lower court decision that rejected the government’s construction of the Stored Communications Act (SCA) and embraced a more restrictive view that Microsoft had advanced, backed by much of the tech industry and many privacy groups.

The decision now under review held that electronic communications that are stored exclusively on foreign servers cannot be reached by U.S. prosecutors under the SCA’s warrant provisions—not even where the warrant is served on a U.S. provider that can access the foreign-stored information, and deliver it to U.S. officials, by using computers and personnel based in the United States. See Microsoft Corp. v USA, In the Matter of a Warrant to Search a Certain E‐Mail Account Controlled and Maintained by Microsoft Corporation (2d Cir. July 14, 2016) (Docket No. 14‐2985). (Sidley Austin LLP represented a number of amici in support of Microsoft before the Court of Appeals and District Court.) The Second Circuit adopted Microsoft’s view that the foreign storage of the e-mails placed the information beyond the proper reach of the SCA warrant, and required U.S. prosecutors to work with authorities in Ireland (where the data was stored) to secure the information in a manner consistent with Irish laws. In a concurring opinion, Judge Lynch urged Congress to revise the SCA and adopt a “more complex balancing exercise” in place of the “all-or-nothing” approach that emerged from the court’s analysis. [Lynch Op. 14, 18]

In deciding to grant review, the Supreme Court likely took note of the fact that judges in other parts of the country declined to adopt the Second Circuit’s approach in several subsequent cases involving different email providers (and, in some instances, significantly different storage practices). The decision may also have been informed by the U.S. government’s contention that the Second Circuit’s approach eliminates “access to data necessary to advance important U.S. investigations that protect the safety of Americans.” The Supreme Court will likely hear oral argument in the first quarter of 2018, with a decision to follow before the end of the Court’s term in June 2018.