Accessing Servers Abroad: The Global Comity and Data Privacy Implications of United States v. Microsoft

In February 2018, the Supreme Court will hear argument in United States v. Microsoft Corporation on the issue of whether a U.S. email provider must comply with a warrant issued pursuant to Section 2703 of the Stored Communications Act (“SCA”) by making disclosure in the United States of electronic communications stored exclusively on servers at datacenters abroad.

Recently the parties submitted briefing on the merits to the Court, and a number of amici weighed in to support Microsoft Corp. (“Microsoft”).   Through more than twenty amicus briefs, major tech giants like Google, Apple, and Amazon, along with members of Congress, European lawmakers, European legal groups, and foreign sovereigns, expressed concern about the Government’s interpretation of the SCA. As this interest demonstrates, the Court’s decision is expected to have far reaching implications for the treatment of foreign data protection laws in U.S. courts.

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