Social media sites are transforming not only the daily lives of consumers, but also how companies interact with consumers. Here at Morrison Foerster, across all of our practice groups, we are seeing complex, cutting-edge legal issues arising out of social media. As with the Internet boom during the mid-to-late 1990s, social media is generating new legal questions at a far faster pace than the law’s ability to provide answers to such questions. In an effort to stay on top of these emerging issues, and to keep our clients and friends informed of new developments, Morrison Foerster publishes this blog devoted to the law and business of social media.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Aaron is the chair of the firm’s Technology Transactions Group and co-chair of the Interactive + Digital Media Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals.Aaron’s practice focuses on advising both established and emerging companies in a variety of data- and technology-intensive sectors, including software, SaaS, cloud-based technology, digital media (social media, AR/VR, gaming, streaming media, AdTech), AI, healthcare, consumer electronics, e-commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on branding and marketing, trademark licensing, and content-related transactions, as well as the intellectual property aspects of mergers, acquisitions, asset spin-offs, and private equity investments.He has represented clients such as Autodesk, Meta, OpenAI, Splunk, Konami, Kaiser Permanente, SoftBank, Visa, and Yahoo, among others.Aaron has been recognized by numerous publications for his work on market-defining technology transactions. He is currently ranked by Chambers USA for “Technology Transactions.”Aaron also serves as co-editor of Socially Aware, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics. Aaron is also a sought-after speaker on new and emerging areas of law, and is a frequent presenter and panelist at conferences and legal services programs. In addition to his active practice, Aaron regularly provides pro bono assistance to various nonprofit and charitable organizations such as Common Sense Media and the Starlight Children’s Foundation. He is a member of the board of directors of California Lawyers for the Arts.While in law school at the University of California, Berkeley, Boalt Hall School of Law, Aaron served as executive editor of the California Law Review and was elected to the Order of the Coif. Following law school, Aaron served as law clerk to the Honorable William H. Orrick and the Honorable Martin J. Jenkins, both United States District Judges for the Northern District of California.

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Aaron is the chair of our Technology Transactions Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals. Aaron’s practice focuses on advising both established and emerging companies in a variety of data– and technology–intensive sectors, including software, SaaS, cloud computing, AR/VR, AI, gaming, healthcare, consumer electronics, social media, e–commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on the intellectual property aspects of mergers, acquisitions, asset spin–offs, and private equity investments.

Aaron P. Rubin

Lawrence Gallick is of counsel in the firm’s Austin office and a member of the Technology Transactions Group.Lawrence focuses his practice on technology transactions and licensing matters. His diverse experience includes advising on SaaS agreements, cross-licensing agreements, research and collaboration agreements, development agreements, and distribution agreements. He counsels a broad range of companies across the software, hardware, life sciences, biotech and FinTech spaces, as well as other entities including universities.He advises clients in connection with general corporate matters including contract negotiations, and leasing and technology placement agreements.Lawrence also serves as co-editor of <a href="https://www.sociallyawareblog.com/" target="_blank">Socially Aware</a>, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics.Prior to joining the firm, Lawrence was counsel at another major law firm. Before earning his law degree, Lawrence was a web consultant, project manager, and web developer in Portland, Oregon, where he managed and consulted on projects using industry methodologies and performed custom development and integration of content management systems.Lawrence was named a Super Lawyers “Rising Star” in 2015 and 2018–2022, and is licensed in both California and New York. Lawrence earned his J.D. from the University at Buffalo School of Law, where he was the electronic systems editor for the Buffalo Law Review and awarded the ABA-BNA Award for Excellence in the Study of Intellectual Property Law.

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Lawrence Gallick

Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster.Anthony advises clients on general commercial and transactional matters. He regularly advises companies on the IP aspects of their M&A transactions. His clients include technology, digital media and content for television and music, financial services, and communications companies with diverse intellectual property assets and issues.His practice focuses on the legal aspects of developing, licensing, and commercializing technology and intellectual property, as well as negotiating general commercial contracts, including outsourcing transactions, as well as content and data licenses. He regularly assists clients with legal issues relating to licensing and commercialization of digital media and content, digital content that is distributed over the Internet or streamed, mobile applications and social media, as well as the licensing of recorded music for distribution via digital platforms. Anthony is also experienced with issues relating to open-source software, software development, artificial intelligence and machine learning, cloud-based technology, and protection of proprietary information.Anthony has extensive experience working on matters involving disruptive technologies, such as blockchain. He has helped fintech clients with general intellectual property issues in connection with terms of service for online financial products and services.Anthony is an integral part of the outside pro bono legal team for nonprofit organizations based in New York, including advising clients on legal issues regarding entertainment, social media, privacy rights, and the negotiation of outsourcing and service agreements. Anthony received his J.D. from the University of Michigan Law School in 2009. He received his B.S. from Cornell University in 2004.

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Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster. He advises clients on general commercial and transactional matters. His clients include technology, media, and communications companies with considerable intellectual property assets. His practice focuses on the legal aspects of licensing and commercializing technology and intellectual property, as well as negotiating general commercial contracts. He also regularly assists clients with legal issues relating to mobile applications and social media.

Anthony M. Ramirez

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As a result of the Second Circuit’s recent opinion in Microsoft v. United States, the U.S. government likely can no longer use warrants issued pursuant to the S

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Second Circuit: Email Stored Outside the U.S. Might Be Beyond Government’s Reach

Second Circuit: Email Stored Outside the U.S. Might Be Beyond Government’s Reach | Socially Aware

As a result of the Second Circuit’s recent opinion in <a href="http://www.ediscoverylaw.com/wp-content/uploads/2016/07/In-re-Matter-of-a-Warrant.pdf" target="_blank" rel="noopener">Microsoft v. United States</a>, the U.S. government likely can no longer use warrants issued pursuant to the <a href="https://www.law.cornell.edu/uscode/text/18/part-I/chapter-121" target="_blank" rel="noopener">Stored Communications Act</a> (“SCA”) to compel U.S.-based companies to produce communications, such as emails, that are stored in a physical location outside of the United States—at least for now. Instead, the government will likely need to rely on Mutual Legal Assistance Treaties, which provide a framework for states to, among other things, provide assistance to one another to obtain and execute search warrants in their respective jurisdictions.Nevertheless, it is likely that the U.S. government will seek an alternative, which could include appealing the case to the Second Circuit en banc or pursuing legislation in Congress to amend and update the SCA in light of new digital realities.Background on the SCA and the Microsoft DisputeThe SCA, which limits service providers’ disclosure of the user data they store, provides that a service provider may disclose to the government certain information, such as the stored contents of a customer’s emails, only if the government first obtains a warrant requiring the disclosure. <a href="http://www.ediscoverylaw.com/wp-content/uploads/2016/07/In-re-Matter-of-a-Warrant.pdf" target="_blank" rel="noopener">Microsoft v. United States</a> arose out of Microsoft’s dispute over the scope of one such warrant, which sought information about an email account that Microsoft determined was hosted in Dublin.Microsoft moved to quash the warrant with respect to the actual emails in the account on the grounds that the SCA does not authorize a search and seizure outside of the territory of the United States, which is where the emails were stored.Summary of the Second Circuit RulingThe Second Circuit reached its decision by answering three questions:<ul><li>What is a warrant under the SCA? Is it like a quasi-subpoena that would require a company to produce documents or information under the company’s control, regardless of where the information may be physically located? Or is it truly a warrant that only provides the government the right to conduct a search or obtain documents or information based on the statutory authority underlying the warrant (i.e., the scope of the SCA itself)?</li><li>What is the scope of the SCA?  If the scope of the warrant is limited to the scope of the SCA, then the next vitally important question is whether the authority of the SCA is limited to the United States or extends extraterritorially.  If the SCA does not extend beyond the borders of the United States, neither would the warrant.</li><li>What action was required pursuant to the warrant, and did that action take place in the United States? Even if the court found that the SCA and, therefore, the warrant were confined to the territory of the United States, the court still had to address where the seizure of the emails would occur. Microsoft had the technical ability to access the emails from the United States, but argued that the emails themselves were located in Dublin, a foreign jurisdiction.</li></ul>The Second Circuit agreed with Microsoft and found that the warrant was not enforceable outside of the boundaries of the United States, and that because the emails were stored outside of the United States and would need to be accessed outside of the United States, they could not be extracted from Dublin under the SCA.The Scope of an SCA WarrantFirst, Microsoft argued that the warrant contemplated by the SCA is not a “hybrid” of a warrant and a subpoena but, rather, purely a warrant. This distinction mattered because a subpoena may require the production of communications stored overseas, while a warrant may be more limited. A subpoena can be served on a company and call for materials within the company’s possession and control, regardless of where the information is physically located.  Citing the Second Circuit’s 1983 decision in <a href="http://openjurist.org/707/f2d/663/marc-rich-co-ag-marc-rich-co-ag-v-united-states" target="_blank" rel="noopener">Marc Rich & Co., A.G. v. United States</a>, the court explained that relevant precedent provides that “a defendant subject to the personal jurisdiction of a subpoena-issuing grand jury could not ‘resist the production of [subpoenaed] documents on the ground that the documents are located abroad.’”A warrant, however, only provides the government with a right to conduct a search or obtain documents or information. That right cannot extend beyond the scope of the statutory authority forming the basis for the warrant. And, because the warrant was authorized under the SCA, if it were truly a warrant, it would only encompass the authority to obtain information covered by the SCA (as opposed to all information within Microsoft’s possession).The <a href="https://casetext.com/case/in-re-of-184" target="_blank" rel="noopener">district court</a>, in denying Microsoft’s motion to quash, had reasoned that the SCA warrant was like a subpoena because, in the words of the Second Circuit, “it is executed by a service provider rather than a government law enforcement agent, and because it does not require the presence of an agent during its execution.” In other words, the government simply served the warrant to Microsoft, and Microsoft then searched for and provided relevant materials to the government (albeit withholding some of them). The government does not execute an SCA warrant itself by conducting a search and seizing the emails directly in the same way it might search a house and seize a personal computer, for example.The Second Circuit disagreed, reasoning that the warrant required for a service provider to make a disclosure to the government under the SCA—is, indeed, the same thing as is meant by the term of art “warrant.” As a result, the court concluded that no law developed in the subpoena context could apply to the SCA warrant, and the scope of the search would therefore be limited by the scope of the SCA’s authority. Accordingly, the fact that Microsoft was physically located in the United States and subject to the jurisdiction of the SCA generally was not relevant. Instead, the operative issue is what conduct of Microsoft—i.e., which of Microsoft’s services— are covered by the SCA and thus subject to a warrant issued under the SCA.The court then addressed the SCA’s scope. If the SCA does not reach outside of the United States, the court reasoned, the warrant could not reach outside of the United States either. The court concluded that the SCA does not “contemplate or permit extraterritorial application,” reasoning that the “focus” of the SCA’s warrant provisions as “protecting the privacy of the content of a user’s stored electronic communications.”  In other words, the SCA is intended to protect the privacy of individuals in connection with the seizure of emails, and that privacy protection is intended to apply within the United States.As a result, the activity permitted pursuant to any SCA warrant—e.g., a search of emails—also must apply only within the United States. Based on this analysis, the court had “little trouble” concluding that using the warrant to authorize the retrieval of emails stored abroad would constitute “an unlawful extraterritorial application” of the SCA.Finally, the court confirmed that the activity at issue would, indeed, occur outside of the United States, reasoning in part that “the data is stored in Dublin, that Microsoft will necessarily interact with the Dublin datacenter in order to retrieve the information for the government’s benefit, and that the data lies within the jurisdiction of a foreign sovereign [i.e., Ireland].” In other words, even if Microsoft accessed the emails from a U.S. workstation, the actual seizure of the emails would occur on a server in Dublin.Aftermath and ImplicationsMicrosoft v. United States was closely watched because of privacy concerns raised by the governments of some countries in the European Union and by advocacy groups and others. A number of U.S.-based technology and media companies, as well as trade associations, advocacy groups and the government of Ireland itself, filed amicus briefs in favor of Microsoft’s position in the case. The Irish government’s brief, for example, argued “[f]oreign courts are obliged to respect Irish sovereignty” because Ireland cooperates with other states to fight crime and has enacted legislation giving effect to international treaties and instruments that provide for mutual legal assistance in criminal matters.This ruling should be some comfort to U.S. companies that provide stored communications services, such as email, on a global basis. For now, at least, it appears U.S. law enforcement cannot directly access, via warrants issued under the SCA, information that: (1) belongs to people who are not in the United States; (2) is held by U.S.-based service providers; and (3) is stored on servers that are not within U.S. territory. The opinion does not, however, resolve all debates about cross-border data transfers and data access. In particular, the SCA is just one of many mechanisms by which the U.S. government can access information; there are other mechanisms that are, indeed, subpoena-based and thus not subject to the same strict territorial analysis.Furthermore, the court did not resolve how the SCA warrant provisions would apply to data stored abroad but related to U.S. citizens or residents. While the U.S. legal regime has typically been territorially based, in the cloud-based digital age, a bright territorial line may not be viable. One possibility would be for the United States to adopt a regime that focuses not on the physical location of the data but on the physical location of the data subject (i.e., where the individual resides, as opposed to where the emails reside).Otherwise, a singular focus on the location of the information itself might result in more governments implementing data localization requirements to ensure that they can access their residents’ information. Because increased localization requirements can make it difficult to deliver cloud‑based services, including email services, such requirements would ironically be just as detrimental to service providers as the prospect of a globalized SCA was prior to the Second Circuit’s Microsoft v. United States decision.In light of these considerations, it remains to be seen how the U.S. Justice Department, other governments and other industries will respond. In the near term, possibilities include a legislative fix or an appeal, which—in light of the current eight-member Supreme Court and the possibility of a 4-4 split decision that would leave the Second Circuit’s ruling in place —would most likely be to the Second Circuit en banc.One thing is clear: We have not seen the end of the debate over the reach of government authority in the digital age or over the concept of jurisdiction and territoriality when information can move across borders—and be moved across borders—in the blink of an eye.