The U.S. Is Special; Our Search Warrants Give Us Access to Private Properties in Foreign Countries

Up until now, if you wanted to search the home or workplace of someone in another country you had to arrange it with the foreign government. According to Reuters, a judge decided that was too “burdensome.”

In what appears to be the first court decision addressing the issue, U.S. Magistrate Judge James Francis in New York said Internet service providers such as Microsoft Corp or Google Inc cannot refuse to turn over customer information and emails stored in other countries when issued a valid search warrant from U.S. law enforcement agencies.

If U.S. agencies were required to coordinate efforts with foreign governments to secure such information, Francis said, “the burden on the government would be substantial, and law enforcement efforts would be seriously impeded.”

Well, if we want to unburden law enforcement, then let’s nullify the Fourth Amendment altogether for any country. What this judge has just told all present and potential foreign customers for Google, Microsoft, or any other American country is that, if they use their services, they are exiting the protections afforded by their own governments, and are now subject to U.S. jurisdiction.

This is an unprecedented decision that breaks with the law on U.S. warrants. As TechDirt explains, the judge had to claim that warrants for digital content were not really warrants.

The judge’s own explanation is basically that he’s pretending the warrant is not a warrant, but a subpoena.

Francis agreed that this is true for “traditional” search warrants but not warrants seeking digital content, which are governed by a federal law called the Stored Communications Act.

A search warrant for email information, he said, is a “hybrid” order: obtained like a search warrant but executed like a subpoena for documents. Longstanding U.S. law holds that the recipient of a subpoena must provide the information sought, no matter where it is held, he said.

If the Stored Communications Act sounds familiar, that’s because it’s a part of ECPA, the horribly outdated law that we’ve been discussing for years concerning its need for reform. If this ruling stands (and Microsoft is already challenging it), it’ll be just one more thing that ECPA reform needs to tackle.

Whatever you think of the judge’s legal reasoning, as a matter of international relations, this ruling is going to compound the effect of the NSA in basically making us stink to our allies. We are saying we can search their stuff as if they belong to us, not to another nation with its own government.