The Supreme Court of the United States has decided to hear a case in which Microsoft is challenging the government’s right to obtain data from foreign servers with a valid warrant issued by a court in the United States. The high court’s decision in the case, popularly known as Microsoft v. United States, but formally titled, “In the Matter of a Warrant to Search a Certain E‐Mail Account Controlled and Maintained by Microsoft Corporation,” is expected to have huge implications for digital privacy rights and international relations. Microsoft holds that the federal government must apply for the data it is seeking through a Mutual Legal Assistance Treaty (MLAT), a process which is longer and harder for the government to obtain the information than through the domestic warrant process it is currently seeking the information under. Even the government of Ireland filed an amicus brief with the Second Court of Appeals in support of Microsoft’s position on the warrant in the case. The government’s warrant was issued under the anachronistic Stored Communications Act of 1986.
The Microsoft case stems from a 2013 drug related case involving Irishman Gary Davis, the alleged admin known as Libertas from the original Silk Road darknet marketplace. The government is seeking emails that were sent and received by Davis’ Hotmail account, which are currently located on Microsoft’s servers in Dublin, Ireland. In July of last year the United States Second Court of Appeals ruled that the government’s warrant in the Microsoft case could not be applied to Microsoft’s servers located outside of the United States. “We conclude that Congress didn’t intend for the Stored Communication Act’s warrant provisions to apply extraterritorially,” the judges for the Second Court of Appeals wrote in their ruling on the Microsoft case. The Department of Justice appealed this ruling, and the Supreme Court granted a writ of certiorari. The case will now be heard by the high court during its 2017-2018 session.
The Supreme Court did not state its reasons for granting the writ of certiorari in the Microsoft case. While some expected the Supreme Court would decline to hear the case and would wait for Congress to modernize and clarify the Stored Communications Act, one reason the high court may have decided to hear the case is because there is a split between circuits on how far reaching the applicability of warrants under the Stored Communications Act are. Earlier this year, in April, the United States District Court for the Northern District of California ruled that Google was required to turn over user data that was stored on servers located on foreign soil. Another case involving Google from earlier this year ended similarly, when in February, a United States magistrate in Philadelphia ordered Google to turn over user data that was stored on servers located on foreign soil.
Both Judge Susan Carney of the United States Second Court of Appeals and Microsoft believe that Congress needs to update the Stored Communications Act. “The current laws were written for the era of the floppy disk, not the world of the cloud. We believe that rather than arguing over an old law in court, it is time for Congress to act by passing new legislation,” Microsoft wrote in a recent blog post on the court case. Congress is currently considering legislation which would update the Stored Communications Act, such as a bipartisan bill introduced in the United States Senate known as the International Communications Privacy Act of 2017.
Privacy advocates argue that allowing American warrants to apply to property located on foreign soil would put the United States in violation of international treaties. Microsoft itself even argued this during its battle against the Department of Justice in the Second Court of Appeals. Microsoft believes that the federal government is wrong to go against precedent and assume that Congress intended the Stored Communications Act to apply outside of its jurisdiction without Congress making its intent clear in the law itself. The company also disagrees with the government’s view that e-mails are the property of the service provider and not of the account holder. Microsoft believes that if the government is successful in applying the warrant to data stored in other countries that it will put everyone’s email at risk, by inviting other countries to try to force companies to turn over emails stored on servers located on American soil.
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