Jul 252014
 July 25, 2014  Posted by  Business, Court, Govt, Surveillance, U.S.

Orin Kerr writes:

A few weeks ago, I wrote a long post on a very interesting case, now pending before Chief Judge Preska in the Southern District of New York, on what privacy protection extends to e-mails stored by a U.S. provider on a server outside the U.S. The government has since filed its brief (available here) and Microsoft has filed its reply brief (available here). In this post, I thought I would offer some thoughts on both briefs.

In general, I found myself underwhelmed by both briefs. DOJ’s basic argument is that subpoenas traditionally require recipients to gather evidence abroad, and that the SCA is just an enhanced more protective subpoena. As such, it should have the same territorial scope. Microsoft responds that this case is really different because it’s not Microsoft’s records at stake: These records belong to the user, not Microsoft.

Read more on WaPo The Volokh Conspiracy.

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