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July 14, 2016
WASHINGTON—The U.S. Court of Appeals for the Second Circuit has ruled in favor of Covington’s client Microsoft Corporation in its challenge to a U.S. warrant seeking customer emails stored in Ireland.
Microsoft argued that the warrant—issued under the Electronic Communications Privacy Act (ECPA)—could not be used to obtain emails stored abroad because it would violate the presumption against extraterritoriality. In a decision authored by Judge Susan Carney, the Second Circuit embraced Microsoft’s position, holding that ECPA does not authorize warrants to reach customer emails that U.S. technology companies store outside the country. The court found the government’s argument in support of the warrant “stands the presumption against extraterritoriality on its head.” In a separate concurrence, Judge Gerard Lynch recognized the need for Congress to create a new statutory framework addressing law enforcement’s access to data across borders.
“We obviously welcome today’s decision by the United States Court of Appeals for the Second Circuit,” Microsoft said in a statement. “The decision is important for three reasons: it ensures that people’s privacy rights are protected by the laws of their own countries; it helps ensure that the legal protections of the physical world apply in the digital domain; and it paves the way for better solutions to address both privacy and law enforcement needs.”
Working closely with Microsoft’s in-house litigators and co-counsel at Orrick, Herrington & Sutcliffe, Covington’s team was led by Jim Garland and included Alex Berengaut, Kate Goodloe, Nancy Kestenbaum, and Claire Catalano Dean.