Second and Ninth Circuit Opinions on Email Issues (7/14/16; 7/15/17)

Emails can be the mother lode in criminal prosecutions.  Two Courts of Appeals in the last two days issued major decisions in cases involving emails and privacy.

In Microsoft Corp v. United States, ____ F.2d ___,  2016 U.S. App. LEXIS 12926 (2d Cir. 7/14/16), here, the Second Circuit panel offered the following opening case summary:

Microsoft Corporation appeals from orders of the United States District Court for the Southern District of New York (1) denying Microsoft’s motion to quash a warrant (“Warrant”) issued under the Stored Communications Act, 18 U.S.C. §§ 2701 et seq., to the extent that the orders required Microsoft to produce the contents of a customer’s e‐mail account stored on a server located outside the United States, and (2) holding Microsoft in civil contempt of court for its failure to comply with the Warrant.  We conclude that § 2703 of the Stored Communications Act does not authorize courts to issue and enforce against U.S.‐based service providers warrants for the seizure of customer e‐mail content that is stored exclusively on foreign servers.

For earlier blogs on the the Microsoft Case and the Stored Communications Act, see

• The Stored Communications Act and Emails: An Overview, Federal Tax Crimes Blog 4/25/15), here.
• Peter D. Hardy, and Carolyn H Kendall, Guest Blog on Stored Communications Act Reach to Cloud Storage Outside the U.S., Federal Tax Crimes Blog 4/25/15), here.

In In re Grand Jury Subpoena,JK-15-029, ___ F.3d ___, 2016 U.S. App. LEXIS 12860 (9th Cir. 7/13/16), here, the Ninth Circuit's staff summary of the opinion is:

SUMMARY*
* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. 

Grand Jury Subpoena 

The panel reversed the district court’s order declining to quash a grand jury subpoena seeking a broad range of information from the State of Oregon as part of a federal investigation into activities of former Governor John Kitzhaber, and remanded. 

For several years before Kitzhaber left office, copies of his personal emails were archived on Oregon’s computer servers. The panel agreed with Kitzhaber, an intervenor, that he had a reasonable expectation of privacy in much of his personal email (although the Fourth Amendment’s protection does not extend to any use of a personal email account to conduct public business), and that the subpoena in this case — which is not even minimally tailored to the government’s investigatory goals – is unreasonable and invalid. The panel held that Kitzhaber may not assert the attorney-client privilege for his communications, including communications regarding potential conflicts of interest and ethics violations, with the State of Oregon’s attorneys. The panel explained that whatever privilege may protect those communications belongs to the State of Oregon, not to Kitzhaber as an individual officeholder in his personal capacity. 

The panel remanded with instructions to quash the present subpoena in its entirety. The panel declined to address in the first instance issues likely to arise concerning the means of segregating and producing the material requested by a subpoena tailored in accordance with this opinion.

When I have more time (perhaps early next week), I will supplement this blog entry.

Addendum 7/15/16 3:00 pm:

I write to point readers to two excellent treatments of the holding :

• Orin Kerr, Second Circuit: Warrants cannot be used to compel disclosure of emails stored outside the United States (The Volokh Conspiracy 7/14/16), here.

The holding: If a U.S. company stores customer email outside the United States, whether of U.S. or foreign customers, the government cannot use a domestic search warrant to compel the disclosure of the email. If the data is stored outside the United States, the government has to find some other way to compel the email other than a traditional search warrant. 

This post will cover the reasoning of the opinion, and in another post I’ll address its implications and what happens next.

• Henry Farrell, Microsoft just won a big privacy fight with the government. Here’s what that means (NYT 7/15/16), here, including a Q&A with Jennifer Daskal, assistant professor at American University’s Washington College of Law.  Professor Daskal offers some good comment, including the need for a government solution which, in this environment of divided government, may not happen soon.  (See Judge Lynch's concurring opinion.)