Beyond Microsoft: A Legislative Solution to the SCA’s Extraterritoriality Problem

By Andrew Kirschenbaum

The Stored Communications Act governs U.S. law enforcement’s access to cloud data, but the statute is ill equipped to handle the global nature of the modern internet. A pending U.S. Supreme Court case, United States v. Microsoft, raises the question whether a warrant under the statute may be used to reach across international borders to obtain data that is stored in another country, regardless of the user’s nationality. While the Court will determine whether this is an impermissible extraterritorial application of the current law, many have called for a legislative resolution to this issue.

Due to the insufficiency of the current law, the limits of traditional judicial doctrines, and the inherent advantages the legislature has over the judiciary in addressing technological change, this Note also recommends a legislative resolution. Building upon a legislative proposal, this Note proposes a framework with two separate sets of legal procedures based on user identity. These separate domestic and extraterritorial procedures provide a framework that would set clear guidelines for law enforcement and service providers while giving due respect to foreign sovereignty.