over the emails while it pursues an appeal.(

In a letter to the judge on Tuesday, the DOJ, which had earlier consented to the stay, points to the issue that Judge Preska's decision was not a final, appealable order from the point of the view of the United States Court of Appeals for the Second Circuit.

Microsoft has, meanwhile, informed the district court that it has appealed to the 2nd Circuit from the order entered by the district court on July 31.

Describing the challenged aspect of the warrant as "the functional equivalent of a subpoena," the DOJ wrote in its letter that under 2nd Circuit precedent, "an entity challenging a subpoena cannot seek appellate review of a district court's decision upholding that subpoena unless it first defies the court's orderhas been the interpretation of the warrant. U.S. Magistrate Judge James C. Francis IV of the New York court in April declined to quash a December warrant that authorized the search and seizure of information, including content and identifiers such as name and physical address, of a Web-based email account stored at Microsoft's premises.

The company has held that courts in the U.S. are not authorized to issue warrants for extraterritorial search and seizure. It objected to the warrant issued by the magistrate judge under the Electronic Communications Privacy Act, as it would authorize the U.S. government to search "any and all" of Microsoft's facilities worldwide, which besides violating international laws and treaties, would also spook customers outside the U.S. from using its cloud and other services.

Judge Francis held