New York Judge: The 4th Amendment Doesn’t Pertain to Online Storage


US Magistrate James Francis, a New York judge, recently made a controversial ruling two months ago that you may want to know about. The decision, made in a case against Microsoft, declared that US search warrants apply to digital information even if its stored overseas.

The ruling was given after Microsoft was ordered to hand over the email account of a user under investigation for drug trafficking – the company’s information was stored overseas in Dublin, Ireland. Microsoft then challenged the authority of the government to seize it from outside United States borders. The US Government responded, stating that (according to the Stored Communications Act) online storage isn’t protected by the fourth amendment.

“Overseas records must be disclosed domestically when a valid subpoena, order, or warrant compels their production. The disclosure of records under such circumstances has never been considered tantamount to a physical search under Fourth Amendment principles, and Microsoft is mistaken to argue that the SCA provides for an overseas search here. As there is no overseas search or seizure, Microsoft’s reliance on principles of extra-territoriality and comity falls wide of the mark.”

– US Department of Justice

With how prevalent online storage is in our lives today, the privacy of the average user has become more and more of a controversial topic each year. While the Department of Justice would argue that a ruling like this is necessary, considering something like cyberterrorism isn’t limited by borders, it puts the minds of American citizens at unease.

Not only does it make us uncomfortable, but I would imagine it would make others across the world uncomfortable, as well. With how much controversy the US has already gotten itself into with other countries, being accused of wiretapping and spying, people using cloud storage services overseas wouldn’t be paranoid to consider their privacy at risk, either.

“A U.S. prosecutor cannot obtain a U.S. warrant to search someone’s home located in another country, just as another country’s prosecutor cannot obtain a court order in her home country to conduct a search in the United States. We think the same rules should apply in the online world, but the government disagrees.”

– Microsoft’s official statement

As generations are passing by, we’re slowly moving away from that time where we’d go to the 1-Hour-Photo to get our shots in hand. Scratch that – that time’s practically gone. Everything’s digital now, and our storage is digital. With how many photos are put up on cloud services every day, it’s a good idea to keep in mind that they don’t carry the same rights as physical pictures anymore. As always, if you have photos containing sensitive information, always make sure you have it backed up on a hard drive. Avoid putting anything like that online, and if you do, encrypt it.

[Engadget via PetaPixel, picture (cc) via Tom Raftery]

  • Disillusioned

    Typical US arrogance. . . and the American people wonder WHY so much of the world despises them, some to the point of acts of terrorism.

    • Jim Johnson

      Yes, because this has so much to do with international actions.

      I hate to tell you this, but this article is about applying U.S. law to a U.S. company concerning a U.S. citizen. This has nothing to do with anyone outside of the U.S.

      • Paul Danger Kile

        The foreign division of a “US” company is almost always a separate foreign company.

        Most countries will not allow a foreign company to operate within borders, so multinationals such as MS are really a collection of separate companies with similar branding that work together. The company’s “home” country then owns stock in the foreign companies with it’s name, but not 100% of the stock, because people in those other countries can buy it on their own stock markets.

  • Jim Johnson

    Data knows no borders, so laws have to be reinterpreted.

    However, this article and others on this topic are misleading. The ruling did not say that the fourth amendment does not apply, it says that the parts of the fourth amendment pertaining to physical property do not apply, because data is neither physical or tied to a specific location. (ie. if his email account is in Ireland, why is he able to access it anywhere in the world).

    The notion that data is not tied to a physical space is what has hurt the music industry. They were only considering it as a physical quantity and never thought that it would become a constantly flowing data stream.

    • Paul Danger Kile

      As much as this sickens me, I have to admit that you are correct.

  • Renato Murakami

    I’ll just repost the comment I made on Petapixel because it seems this news is spreading without any care for the content… again, revise your title.
    “Correct me if I’m wrong, but the title seems to be overdoing it or plain misunderstanding what is happening there. The topic is sensitive so there needs to be some extra care about how it’s addressed here. I’d highly recommend changing it.

    The quote is addressing only where the 4th amendment would require specifically an overseas search for the data, not the entirety of the 4th amendment itself, which speaks about the requirement of probable cause for search and seizure.

    In this case, the Justice Department already has probable cause or judicial order. What’s in question here is whether the justice department also needs overseas search permission to have access to data stored in Dublin servers or not.

    This is far more reasonable. It’s not like US government is negating the 4th amendment for online storage – like the title says. It’s not about getting data without permission. This is a discussion on what should be considered the physical location of digital information.

    The servers might be in Dublin, but the corporation is in the US, and furthermore, the infrastructure is probably unified somewhere in the US too. If the justice department needs information on a suspect that is an US citizen, it would be quite hard for them to get anything if everytime they asked for it, the information could be stored just about in any country in the world Microsoft has servers in. So the discussion is at least reasonable.”

    • Jim Johnson

      This is the internet …. reasonable doesn’t live here.

      I completely agree. I was in the same discussion on PetaPixel. Applying law written about physical property is not so easy to just apply to digital property. Discussions need to be had.

    • Rick

      The DOJ’s search would also be performed from within the physical boundaries of the U.S. on data stored and controlled by a U.S. company. I’m not sure how the 4th amendment comes into play if there is a lawfully authorized search warrant.

      The real question would be what if the information had been stored on a foreign company’s server which was located in a foreign country. The DOJ would have no standing there. Forcing a U.S. company to comply is one thing….

      • Paul Danger Kile

        Each multinationals overseas divisions are foreign companies in almost all cases. Most countries will not allow a foreign company to operate within borders, so multinationals such as MS are really a collection of separate companies with similar branding that work together. The company’s “home” country then owns stock in the foreign companies with it’s name, but not 100% of the stock, because people in those other countries can buy it on their own stock markets.

    • David Lewis

      Renato is right on point, this doesn’t concern the 4th amendment.
      The problem here is there are two ways to slice this:
      1. The US has required companies to (accurately) account for foreign assets and transactions for accounting purposes. This is one example of foreign data.
      2. The US cannot enforce a search warrant on physical property located in another country.

      There is another issue at hand when it comes to 4th amendment rights and online storage as well. The government has now made a habit of tracking online data (which most people would have the reasonable expectation of privacy), which is in violation of the forth amendment. The ridiculous part here is that there is little being done to stop it….

      As for this article- Shame on DIYphoto for hosting it, I feel like a site that I come to for photography news (and other cool photo stuff) is becoming a political podium….