Microsoft Moves to Quash Warrant Asking It to Share Emails of Customer Suspected of Drug Trafficking

II. Procedural History

On December 4, 2013, Magistrate Judge James C. Francis IV of the United States District Court for the Southern District of New York issued the “Search and Seizure Warrant” that became the subject of Microsoft’s motion to quash.

Although the Warrant was served on Microsoft, its printed boilerplate language advises that it is addressed to “[a]ny authorized law enforcement officer.” Id. at 44.  It commands the recipient to search “[t]he PREMISES known and described as the email account [redacted]@MSN.COM, which is controlled by Microsoft Corporation.”[6]  Id.  It requires the “officer executing [the] warrant, or an officer present during the execution of the warrant” to “prepare an inventory . . .  and promptly return [the] warrant and inventory to the Clerk of the Court.”  Id

Its Attachment A, “Property To Be Searched,” provides, “This warrant applies to information associated with [redacted]@msn.com, which is stored at premises owned, maintained, controlled, or operated by Microsoft Corporation . . . .” Id. at 45. Attachment C, “Particular Things To Be Seized,”[7] directs Microsoft to disclose to the government, “for the period of inception of the account to the present,” and “[t]o the extent that the information . . . is within the possession, custody, or control of MSN [redacted],” id., the following information:

(a) “The contents of all e‐mails stored in the account, including copies of e‐mails sent from the account”;

(b) “All records or other information regarding the identification of the account,” including, among other things, the name, physical address, telephone numbers, session times and durations, log‐in IP addresses, and sources of payment associated with the account;

(c) “All records or other information stored by an individual using the account, including address books, contact and buddy lists, pictures, and files”; and

(d) “All records pertaining to communications between MSN [redacted] and any person regarding the account, including contacts with support services and records of actions taken.” J.A. 46–47. [8]

After being served with the Warrant, Microsoft determined that the e‐mail contents stored in the account were located in its Dublin datacenter. Microsoft disclosed all other responsive information, which was kept within the United States, and moved the magistrate judge to quash the Warrant with respect to the user content stored in Dublin.

As we have recounted, the magistrate judge denied Microsoft’s motion to quash. In a Memorandum and Order, he concluded that the SCA authorized the District Court to issue a warrant for “information that is stored on servers abroad.” In re Warrant to Search a Certain E‐Mail Account Controlled and Maintained by Microsoft Corporation, 15 F. Supp. 3d 466, 477 (S.D.N.Y. 2014) (“In re Warrant”).  He observed that he had found probable cause for the requested search, and that the Warrant was properly served on Microsoft in the United States. He noted that, inasmuch as an SCA warrant is served on a service provider rather than on a law enforcement officer, it “is executed like a subpoena in that it . . . does not involve government agents entering the premises of the ISP [Internet service provider] to search its servers and seize the e‐mail account in question.”  Id. at 471. Accordingly, he determined that Congress intended in the Act’s warrant provisions to import obligations similar to those associated with a subpoena to “produce information in its possession, custody, or control regardless of the location of that information.”  Id. at 472 (citing Marc Rich, 707 F.2d at 667). While acknowledging that Microsoft’s analysis in favor of quashing the Warrant with respect to foreign‐stored customer content was “not inconsistent with the statutory language,” he saw Microsoft’s position as “undermined by the structure of the SCA, its legislative history,” and “by the practical consequences that would flow from adopting it.”  He therefore concluded that Microsoft was obligated to produce the customer’s content, wherever it might be stored.  He also treated the place where the government would review the content (the United States), not the place of storage (Ireland), as the relevant place of seizure.

Microsoft appealed the magistrate judge’s decision to Chief Judge Loretta A. Preska, who, on de novo review and after a hearing, adopted the magistrate judge’s reasoning and affirmed his ruling from the bench.  In re Warrant to Search a Certain E‐Mail Account Controlled and Maintained by Microsoft Corporation, 1:13‐mj‐02814 (S.D.N.Y. filed Dec. 4, 2013), ECF No. 80 (order reflecting ruling made at oral argument).

Microsoft timely noticed its appeal of the District Court’s decision denying the motion to quash.  Not long after, the District Court acted on a stipulation submitted jointly by the parties and held Microsoft in civil contempt for refusing to comply fully with the Warrant.[9] Id. at ECF No.92.  Microsoft timely amended its notice of appeal to reflect its additional challenge to the District Court’s contempt ruling.

We now reverse the District Court’s denial of Microsoft’s motion to quash; vacate the finding of contempt; and remand the case to the District Court with instructions to quash the Warrant insofar as it calls for production of customer content stored outside the United States.

[6] The name of the e‐mail address associated with the account is subject to a sealing order and does not bear on our analysis.

[7] Although the Warrant includes an Attachment A and C, it appears to have no Attachment B.

[8] The Warrant also describes in Attachment C techniques that would be used (presumably by the government, not Microsoft) “to search the seized e‐mails for evidence of the specified crime.” J.A. at 47.

[9] As reflected in their stipulation, Microsoft and the government agreed to the contempt finding to ensure our Court’s appellate jurisdiction over their dispute. See United States v. Punn, 737 F.3d 1, 5 (2d Cir. 2013) (noting general rule that contempt finding needed before ruling denying motion to quash is sufficiently “final” to support appellate jurisdiction). Because Microsoft timely appealed the contempt ruling, we need not decide whether we would have had jurisdiction over an appeal taken directly from the denial of the motion to quash. See United States v. Constr. Prods. Research, Inc., 73 F.3d 464, 468–69 (2d Cir. 1996) (noting exception to contempt requirement as basis for appellate jurisdiction in context of third party subpoena issued in administrative investigation).