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Ominous CLOUD for Contractors Working Internationally

Can the government compel an email provider to produce emails stored overseas? The government believed that it could, under Section 2703 of the Stored Communications Act, 18 U.S.C. § 2701, et seq. (SCA or Section 2703). The Second Circuit disagreed in United States v. Microsoft, but before the Supreme Court could answer the question, Congress passed the CLOUD Act and rendered the case moot. That legislative amendment will be the Microsoft case’s legacy: it is now clear that—absent countervailing comity concerns—the government can obtain emails and other data regardless of where they are stored physically. This development is important for government contractors, especially for those which have offices or perform overseas, as it indisputably sweeps emails stored overseas into the ambit of the SCA. The Stored Communications Act – Section 2703 The SCA authorizes the government to require providers of electronic communications, such as Microsoft, to disclose information to the government about wire or electronic communications, including emails. See 18 U.S.C. § 2703. Section 2703 provides three separate mechanisms for the government to acquire such information. First, the government may issue an “administrative subpoena authorized by a Federal or State statute” or “a Federal or State grand jury or trial subpoena.” With a subpoena, the government may acquire basic subscriber information such as the subscriber’s name and identifying information. If the government provides prior notice to the subscriber, or complies with procedures that allow notice to be delayed by up to 90 days, it may also use a subpoena to obtain the contents of emails stored by an electronic communication service for more than 180 days.

Co-Authors: Andy Liu, Jason C. Lynch, Rebekah Woods.

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