In a landmark 5-4 decision, the United States Supreme Court held that the government conducts a search under the Fourth Amendment and therefore, absent exigent circumstances, needs a warrant supported by probable cause when obtaining cell-site location information (i.e., records of the cell towers to which mobile devices connect). The majority reached that conclusion based on the determination that such location records are subject to a reasonable expectation of privacy that continues to apply even though the location records are disclosed to the cell phone user’s wireless carrier, a third party.
A three-judge panel of the U.S. Court of Appeals for the Second Circuit today unanimously reversed a lower court’s denial of Microsoft’s motion to quash a warrant seeking the content of emails for a customer of its Outlook.com email service. The decision is surprising in that that U.S. courts, including the Second Circuit, have traditionally enforced government process seeking documents or data stored abroad from entities that have control over the information under the test of “control, not location.” This case could have a significant impact on cloud providers’ decisions to store information abroad. It also serves, in the midst of debates about the newly enacted Privacy Shield and the recent challenge to Standard Contractual Clauses now before the Court of Justice of the European Union, as a counterbalance to arguments that some make about the U.S. legal system not respecting personal privacy.