The decision that the jurisdiction to issue search warrants concerning foreign data centers lies with the local authorities and not with U.S. courts still stands. In July 2016, a U.S. federal appeals court had ruled that Microsoft is not obliged to grant the U.S. government access to user data stored on servers in Ireland. The government’s request for a rehearing of the case was unsuccessful.
Drug trafficking background
The background to this legal dispute between Microsoft and the U.S. government is that a user of Microsoft’s e-mail-service was alleged to be involved in drug trafficking. Based on this allegation, U.S. government agencies demanded access to the subject’s data that is located on Microsoft’s servers in Ireland. While the trial court ruled in favor of the U.S. government, Microsoft took the case to the appeals court (we reported) and won (we reported).
Rehearing will not proceed
In an attempt to get the appeals court’s decision reversed, the government requested a rehearing, for which a majority of the judges’ votes was required. The request was denied in a tight 4-4 vote by the 2nd Circuit Court of Appeals (three judges recused).
Last chance: The Supreme Court
With the Court of Appeals’ decision to let the ruling stand, the path is cleared for the government to petition the Supreme Court to take up the case. This would require four justices to vote in favor of admitting a hearing. The Supreme Court normally consists of nine justices; after the death of Antonin Scalia in February 2016, one seat is currently vacant. A new member is expected to be nominated by President Trump next week. The nominee must then be confirmed by the Senate.
It will be interesting to see if Microsoft’s legal victory will also prevail before the Supreme Court.