Opinion

Does The Fourth Amendment Apply Overseas?

Peter Ferrara Contributor

The Fourth Amendment to the U.S. Constitution requires the government to obtain a warrant before it can conduct a search and seizure of private property. To get a warrant, the federal government must have probable cause, which means it must have good reason to suspect the property being searched contains evidence of a crime.

But do these Fourth Amendment requirements apply to property held overseas, in other countries? In the 2016 case of Microsoft v U.S., the Second Circuit Court of Appeals held that the Fourth Amendment does apply to the search of property stored by and for U.S. citizens overseas.

That case involved a narcotics investigation. The federal government sought and obtained a warrant against Microsoft under the federal Stored Communications Act for the emails of a Microsoft customer. Microsoft, however, only provided data that was stored on servers in the U.S.

But the emails the investigators mostly wanted were stored on servers in Dublin, Ireland. The District Court consequently held Microsoft in civil contempt for failing to comply with the warrant as to those overseas emails.

On appeal, however, the Second Circuit reversed, holding that the Stored Communications Act did not apply to emails stored overseas. The Act used the term “warrant,” which historically did not apply to the search and seizure of property held by U.S. citizens abroad. The Second Circuit held that the primary focus of the Act was to protect the privacy of U.S. citizens, not to protect law enforcement access, which is why it used the term warrant.

The Court said,

[W]e think [Congress] used the term “warrant” in the Act to require pre-disclosure scrutiny of the requested search and seizure by a neutral third party, and thereby to afford heightened privacy protection in the United States. It did not abandon the instrument’s territorial limitations and other constitutional requirements. The application of the Act that the government proposes – interpreting ‘warrant’ to require a service provider to retrieve material from beyond the borders of the United States – would require us to disregard the presumption against extraterritoriality that the Supreme Court restated and emphasized in Morrison….and, just recently, in RJR Nabisco, Inc….We are not at liberty to do so.

The Court added further,

The importance of the warrant as an instrument by which the power of government is exercised and constrained is reflected by its prominent appearance in the Fourth Amendment….Warrants issued in accordance with the Fourth Amendment identify discrete objects and places, and restrict the government’s ability to act beyond the warrant’s purview – of particular note here, outside of the place identified….As the term is used in the Constitution, a warrant is traditionally moored to privacy concepts applied within the territory of the United States.

Next month, Congress is expected to conduct a hearing on the issue and one worry is that Congress will try to moot the case by passing legislation extending warrants beyond the territory of the United States.  This hearing will explore the idea of whether the data produced by an individual is the property of the person, the company or the government.  Obviously, a warrant, based on probable cause, allows the government to get data under circumstances of a criminal investigation and some investigations that touch on national security, but traditionally a warrant only can be served within the boundaries of the United States, unless a foreign nation consents and helps to effectuate the warrant.

If the federal government were to push a change, it could lead to data localization and a destruction of the business model that allows American-based cloud computing to exist today. Those concerned about the civil liberties protected by warrants should be concerned and keep a close eye on Congress as this debate moves forward.

Peter Ferrara served in the White House Office of Policy Development under President Reagan, and as Associate Deputy Attorney General of the United States under President George H.W. Bush. He also served as General Counsel of the American Civil Rights Union (ACRU) from the organization’s founding in 1998 until 2015.