Supreme Court will hear challenge to Microsoft's data privacy case

Calvin Saunders
October 17, 2017

The lower court ruling put stored electronic communications held overseas beyond the reach of US prosecutors even when there is probable cause that they contain evidence of a crime, Justice Department lawyers said in court papers.

A three-judge panel of the US Court of Appeals for the District of Columbia Circuit ruled against him on a 2-1 vote in August 2016.

In court papers, Bloomberg reports, United States deputy solicitor general Jeffrey Wall said: "Under [Microsoft's] opinion, hundreds if not thousands of investigations of crimes... ranging from terrorism, to child pornography, to fraud... are being or will be hampered by the government's inability to obtain electronic evidence".

In the Microsoft dispute, the Justice Department asked the appeals court to rehear the case but in January the full court split 4-4 on whether to do so, leaving the original decision intact.

"Congress alone has the authority and the institutional competence to craft a new legislative scheme for a world not anticipated in 1986", Microsoft argued.

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In the underlying case, the government in 2013 sought a warrant requiring information about a Microsoft email account that prosecutors believed was being used for narcotics trafficking.

At issue is whether the emails are beyond the reach of domestic search warrants issued under the Stored Communications Act, the Washington Post, the New York Times, Bloomberg News and the National Law Journal (sub. req.) report. He urged Congress to pass the International Communications Privacy Act to update the outdated ECPA. If domestic disclosure warrants cannot be served on the foreign servers of USA companies, United States law enforcement can lean on treaties with the country that the servers are based in.

"The decision provides a roadmap for terrorists and criminals in the United States to insulate electronic communications from USA investigators", Wall argued.

It contradicts the basic premise that before a US statute reaches across another country's borders, it should be clear that's what Congress intended when it passed the law. With so many U.S. tech companies serving foreign countries, a ruling would have a global impact. Microsoft refused to turn over the emails associated with the account, which were stored on servers in Ireland, spurring a legal battle that has dragged on for four years.

Other reports by MaliBehiribAe

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