SCA WARRANTS NOW REACH OUTSIDE THE U.S.

What is an SCA Warrant?

 

In short, an SCA (Stored Communications Act) Warrant is a device used by the Federal Government to obtain information from Microsoft and others regarding individual users actual information stored on the companies computers.  This goes beyond the normal information that the Government admits that it is already gathering regarding an account holder's usage activity and gets to the meat and potatoes of what that user searches for, message content etc....  The Stored Communications Act (SCA) was enacted in 1986 as part of the larger Electronic Communications Privacy Act (ECPA), and sought to provide 4th Amendment-like protections to the contents of electronic communications in the hands of service providers like Microsoft. 

 

Here is the scary part,  U.S. Magistrate Judge James C. Francis IV, ruled last Friday that Microsoft must turn over the records sought by the U.S. Government even though the records they were seeking lay outside the United States in Ireland. 

 

 

18 U.S. Code § 2703 - Required disclosure of customer communications or records

 

(a) Contents of Wire or Electronic Communications in Electronic Storage.— A governmental entity may require the disclosure by a provider of electronic communication service of the contents of a wire or electronic communication, that is in electronic storage in an electronic communications system for one hundred and eighty days or less, only pursuant to a warrant issued using the procedures described in the Federal Rules of Criminal Procedure (or, in the case of a State court, issued using State warrant procedures) by a court of competent jurisdiction. A governmental entity may require the disclosure by a provider of electronic communications services of the contents of a wire or electronic communication that has been in electronic storage in an electronic communications system for more than one hundred and eighty days by the means available under subsection (b) of this section.

 

According to the article publish in the National Review

 

Under the SCA, the government can obtain certain kinds of electronic information held by a service provider only upon a showing of probable cause of wrongdoing.  Obtaining the actual content of an electronic communication requires a higher showing than for, say, account information.  If the showing requirement is met, a court can issue an SCA Warrant.^[2]  The SCA Warrant is served on a service provider, who then conducts a search and produces relevant communications.

The article continues and states:

In its motion to quash the SCA Warrant in this case, Microsoft’s argument was simple: warrants are not subpoenas. If the government served a subpoena on Microsoft, then Microsoft would be required to produce relevant information within its possession, custody or control regardless of where it physically resided.  But, by attempting to obtain information located on servers in Ireland via a warrant, the U.S. government sought information outside of the territorial limits of the United States.  Because Federal courts have no authority to issue warrants for the search and seizure of property outside the territorial limits of the United States, Microsoft argued it should not be required to produce the information. In support of its argument, Microsoft noted the SCA Warrant is referred to as just that, a “warrant,” and also requires to the use of warrant procedures in obtaining it.

Here is the unbelievable part:

This argument, however, failed to convince Judge Francis. After conceding Microsoft’s analysis was “not inconsistent with the statutory language” of the SCA, Judge Francis held that the SCA Warrant was not a typical warrant, but was a “hybrid: part search warrant and part subpoena.”  It is a like a search warrant in that an application is made to a magistrate upon a showing of probable cause.

This so-called Magistrate Judge has single-handedly changed the intent of the 4th Amendment single without any concern for citizen's rights, case law or waiting for the Supreme Court of the United States to consider the wide spread implications of granting the government even more power and authority to invade the reasonable expectations of "We The People".

Semper Vigilantes