Ride the Lightning

Supreme Court To Hear US-Microsoft Battle Over E-mails

October 19, 2017

USA Today reported on October 16^th that the Supreme Court has agreed to hear another major case on digital privacy, this time pitting the federal government against Microsoft in a battle over e-mails held overseas.

The U.S. v. Microsoft case started in 2013, when U.S. prosecutors demanded that Microsoft turn over e-mails linked to a drug-trafficking case. The e-mails were stored only on Microsoft servers in Ireland.

Microsoft turned over information it had stored in the United States but sued to block the warrant, saying U.S. law enforcement couldn't seize evidence held in another country. It warned that if it was compelled to do so, foreign governments could force U.S. companies to turn over evidence stored here.

To add my own comment, what's good for the goose is good for the gander. This would be one heck of a blow to anyone storing data in the U.S.

Microsoft lost the first round in 2014 when U.S. District Judge Loretta Preska said the company had to hand over the e-mails. Last year, the U.S. Court of Appeals for the 2nd Circuit in New York reversed and ruled in Microsoft's favor.

By agreeing to hear the case, the justices are taking on an issue they could have let stand, since there is no split among federal appeals courts.

Another factor? Congress is considering legislation that would update the Stored Communications Act of 1986, which did not address communications held overseas. Microsoft President and Chief Legal Officer Brad Smith said the court should have waited for Congress to act. "The current laws were written for the era of the floppy disk, not the world of the cloud," he said on his blog. "We believe that rather than arguing over an old law in court, it is time for Congress to act by passing new legislation."

The Trump administration urged the high court to take on the case. "Neither the absence of a circuit conflict nor the speculative possibility of eventual legislative action diminishes the acute and present need for this court's review of a legally unsound decision that is frustrating important investigations around the country," it said in legal papers.

Thirty-three states weighed in on the government's side, arguing in a brief submitted by Vermont that the appeals court decision "is interfering with the ability of state and local law enforcement agencies to investigate and prosecute crime in their jurisdictions."

Microsoft argued that Congress is the proper forum to address the issue, noting that the Justice Department proposed a legislative fix before appealing the lower court ruling to the Supreme Court. "Revising a federal statute to account for the globalization of data is a job for Congress, not courts," Microsoft told the justices.

And though I have no vote, I am with Microsoft. Let Congress do its job. Then again . . . the manifold failures of Congress to act are disheartening.

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