Legislatures have been slow to modernize laws to catch up to innovations in digital technology, forcing courts around the country to apply old laws to new technology. This begs the question: is the failure to respond to rapidly advancing technology creating inadvertent loopholes for parties involved in litigation to circumvent evidentiary requirements?

Microsoft v. United States, highlights a controversial ruling by the Second Circuit which showcases the issues that have arisen due to the ability of electronic metadata to quickly penetrate international borders across the globe, and its effect on traditional views of evidence as residing within specific national borders.

The government sought information from Microsoft pursuant to a warrant that was justified by the Stored Communications Act (“SCA”), a statute enacted in 1986 providing that, upon a threshold showing by law enforcement authorities, third-party Internet service providers must turn over the electronic communications of their customers, including emails. Microsoft complied with part of the warrant and turned over the non-content data stored within the United States, but moved to quash the remaining portion of the warrant which sought information stored on Microsoft’s electronic server located in Ireland. 

Applying the SCA, the Second Circuit reasoned that requiring Microsoft to produce the email content that was stored on servers in Ireland would constitute an extraterritorial application of the SCA, which the statute did not allow for.
In today’s modern era, a significant amount of potential evidence ripe for use in criminal trials comes in the form of electronically stored data such as emails, text messages and user browsing histories. If the company storing this information uses electronic servers located abroad, large portions of evidence become virtually untouchable. This, effectively, makes a warrant seeking such information obsolete, even if the warrant is based on probable cause.

It seems what’s happening here is that lawmakers have fallen into the trap of “you can’t teach an old dog new tricks.” But, is our failure to make an attempt creating unfairness within the System? The U.S. Supreme Court has agreed to review the Microsoft case this Term, so we will have an answer to this question by the end of June.

Read more from Gallet Dreyer & Berkey’s White Collar Criminal Defense blog or contact an attorney in our White Collar Crime practice.