Cleary Gottlieb Files Two U.S. Supreme Court Amicus Briefs Arguing Against an Interpretation of the Stored Communications Act That Would Allow the Government to Seize Emails Stored Abroad

January 22, 2018

Cleary Gottlieb filed amicus curiae briefs in the U.S. Supreme Court in support of Microsoft Corporation in a case that has the potential to dramatically expand the government’s ability to seize electronic communications that are stored outside of the territorial United States.

The briefs were filed on behalf of the Council of Bars and Law Societies of Europe (CCBE) and the European Company Lawyers Association (ECLA).

The case, United States v. Microsoft Corp., No. 17 2, concerns whether Microsoft, an email service provider, must comply with a warrant issued pursuant to the Stored Communications Act (SCA) demanding the disclosure in the United States of email communications stored in Ireland.

Under the SCA, the government may compel service providers like Microsoft to execute a warrant issued under the SCA by searching for, assembling, and reproducing electronic communications. Microsoft refused to comply with the warrant and was held in contempt.

The Second Circuit, in reviewing the case, applied the presumption against extraterritoriality set out in Morrison v. National Australia Bank Ltd., 561 U.S. 247 (2010), and held, unanimously, that the district court lacked authority to enforce the warrant against Microsoft because the statute could not be applied to reach communications outside the United States.

The Supreme Court will hear oral argument in the case on February 27, 2018.

The CCBE is an international nonprofit association, which represents, through its member bars and law societies in 45 member states of the Council of Europe (including 28 member states of the European Union), more than one million European lawyers. The CCBE brings an important perspective to this case, including highlighting the potential threat to international order under which cross-border law enforcement is routinely conducted, the privacy rights of Europeans, and the rights of lawyers and their clients to engage in confidential communications.

“The aim of our brief is to offer a view that takes into account the consequences that will follow should the Court allow the government to exceed their traditional law-enforcement authority and search and seize emails that are wholly outside of the United States,” explained Cleary partner Nowell Bamberger.

The ECLA is an umbrella organization for nineteen company lawyer associations in Europe, with 42,000 constituent lawyers who practice in 18 countries. The ECLA advances common standards and best practices for in-house lawyers across Europe, putting it in a good position to speak to the practical challenges the government’s position in this case creates for lawyers advising their clients.

“ECLA’s brief highlights the real risk of conflict between the government’s position in this case and European data protection and privacy laws,” explained Cleary partner Jared Gerber.

The CCBE’s brief was authored by Cleary partner Nowell Bamberger and associates Brandon N. Adkins and Melissa Gohlke, with substantial assistance by Iain G. Mitchell QC of Tanfield Chambers, London, and Simone Cuomo, of The Council of Bars and Law Societies of Europe. The ECLA’s brief was authored by Cleary partners Jonathan I. Blackman and Jared Gerber and associates Josh E. Anderson and Georgia V. Stasinopoulos.

Click here for a copy of the CCBE’s brief and here for a copy of ECLA’s brief.