Monday, August 24, 2015
Orin Kerr has this post at The Volokh Conspiracy. In part:
Microsoft is challenging a federal search warrant for e-mails that Microsoft has stored on a server in Ireland. According to Microsoft’s brief, the issue is whether the Stored Communications Act (SCA) applies to data stored overseas. Microsoft argues that the SCA regulates data and is being impermissibly applied extraterritorially, so the warrant should not be allowed. The United States responds that the SCA applies and the warrant should be enforced because the SCA regulates providers inside the U.S.. If you accept this framing, which side should win depends on whether the territorial SCA regulates providers (in this case inside the U.S.) or regulates data (in this case outside the U.S.).
I think this framing may be based on a mistaken view of the SCA.