Microsoft at the U.S. Supreme Court: Refusing to Respond to Search Warrant for E-Mails in a Cloud Outside the Country

Microsoft has been in litigation with the United States since 2014 because of a warrant it received, issued by a federal magistrate on behalf of the Justice Department, for the content of the e-mails in the account of  [redacted]@msn.com. Microsoft houses the content of its online accounts in data centers in over 100 countries around the world. For this particular account, some of the content was located  in the cloud data center  in Dublin, Ireland. Microsoft complied with all the requirements of the warrant for the content of the account found in the United States. However, Microsoft refused to turn over the cloud data for the account that was located at the data center in Dublin. Microsoft made a motion to quash the subpoena, which the federal district court denied.  Matter of a Warrant to Search A Certain E-Mail Account Controlled and Maintained by Microsoft, 15 F. Supp. 3d 436 (S.D.N.Y. 2014) .  Microsoft appealed the decision, and the federal court of appeals reversed the decision of the lower court and granted the motion to quash. 829 F.3d 197 (2nd Cir. 2016) . The federal government appealed, and the U.S. Supreme Court granted certiorari.  138 S.Ct. 356 (2017).  Oral arguments were held last week, and the justices seemed to be genuinely stumped as to what to do with the case and the issues. The case is one that combines cyber law and the law on search and seizure all tossed in with a smattering of international law. 

The problem with the case is that Microsoft and other providers such as Yahoo and Google are trying to comply with the Stored Communications Act (SCA), a 1986 federal law which was passed long before there was e-mail and well before the technology for the cloud existed. The SCA prohibits the U.S. government from "unilaterally" reaching into a foreign land to "search for, copy, and import private customer correspondence that is stored on a foreign computer and protected by foreign law. At the time SCA was passed, there was no ability for U.S. companies to create accessible storage around the world.  U.S. companies are the owners of the data located internationally, and they have full access by that ownership, but the SCA's strict application would find Microsoft in violation of the law should it turn over the e-mails. 

There are the public policy arguments of the United States being in the position of ordering other countries to comply with its governmental processes when the cloud materials and businesses operating them are regulated by those countries.  During oral arguments, Justice Alito appeared to agree with the position of Microsoft's lawyer, maintaining that Congress needs to fix the law to bring it up to date in light of all of the technological changes that make international cloud storage a reality. However, Justice Alito also noted that in te interim the court was left to come up with some kind of a solution. Justice Roberts expressed his concern that shielding companies such as Microsoft gives them a marketing tool, i.e., put your e-mails with us and we can assure you that the government will never have access. The lawyer for Microsoft assured the Chief Justice that Microsoft would never do such a thing. Microsoft also expressed concern about the court tinkering around with a statute that carries implications for the tech industry because the legislative process is most suited for getting the input of all those affected so that the issues and consequences are addressed adequately.  You can read the oral arguments here

The Justice Department argued that the U.S. government already has a standard in place to ensure that there are no abuses -- the standards for obtaining a search warrant.  The U.S. lawyers argued that the government is not using a means to get at information stored in other countries.  A search warrant is limited in scope and to persons and entities.  Referring to the Fourth Amendment warrant process as "the gold standard," the Justice Department argued that criminal activity is protected if the cloud in other countries remains inaccessible.  The warrants are for the documents of U.S. citizens and not a breach of privacy. 

The case comes down to one of privacy and statutory regulation vs. privacy and the Fourth Amendment.  The upshot of that battle is that the Supreme Court is somewhat stymied and the justices split.  There will be a decision by the end of June. 

DISCUSSION STARTERS

Explain the statutory issues in the case.

Discuss why the Fourth Amendment is relevant.