- Professor Jamil Jaffer, George Mason Law
The case of In the Matter of a Warrant to Search a Certain E-mail Account Controlled and Maintained by Microsoft Corporation stems from Microsoft's refusal to comply with a search warrant, which would have required Microsoft to hand over the contents of e-mails stored on a server in Ireland, but accessible from the company's U.S. headquarters. The U.S. government had applied for the warrant under Electronic Communications Privacy Act (ECPA). Reversing a lower court decision in favor of the government, the Second Circuit ruled that ECPA warrants did not have extraterritorial effect without express Congressional authorization.
Were the Second Circuit and Microsoft correct? Or was the government, which had contended that the data would be seized in the U.S rather than where it was stored, and therefore the warrant would not be exercised extraterritorially? Is the case a win for the protection of privacy? Will it help protect the relationships and agreements of U.S. entities with foreign nations? Will it be a huge burden to force the government to use the mutual legal assistance process when a provider opts to store the data at issue outside the U.S.?
Cell-site simulators are devices used by law enforcement. In response to the signals emitted by a cell-site simulator, cellular devices in the proximity identify the simulator as the most attractive cell tower in the area and transmit signals to the simulator that identify the device. Using these simulators, investigators can locate cellular devices whose unique identifiers are already known to law enforcement, or determine the unique identifiers of an unknown device by collecting limited signaling information from devices in the simulator user’s vicinity.
It has been a subject of debate whether the use of cell-site simulators by the government requires a warrant supported by probable cause. In September 2015, the Justice Department released a policy requiring federal investigators to obtain a warrant prior to employing a simulator, except under exceptional circumstances.
Is there a Fourth Amendment reasonable expectation of privacy in the data collected by cell-site simulators? Who is in the best position to establish limits in this area (if any), Congress or the courts? Should investigators be permitted to use simulators, even with a warrant?
Paul Rosenzweig, Professorial Lecturer in Law at the George Washington University, explains what encryption is and the legal issues that arise from its use.