Microsoft Email-Access Fight With U.S. Heads to Supreme Court

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Microsoft email-access fight is headed to the Supreme Court.  On Monday, Oct. 16, 2017, the United States Supreme Court agreed to decide whether law enforcement officials conducting a criminal investigation can demand data held overseas by Microsoft Corp. and other technology companies. The war between Microsoft and the Department of Justice (DOJ) has been intense since 2013 when the company challenged provisions of the Electronic Communications Privacy Act governing law enforcement access to user data.

At the time, the DOJ sought access to emails involving the suspect of a drug case that was under investigation. Microsoft had been issued a warrant; however, due to the locations of the company’s data centers, which are all across the globe, the U.S. warrant was invalid.  The warrant’s scope only included the United States and the data was located within the confines of Microsoft’s Ireland data center.  There is a process already in place for obtaining data stored in other countries, but the wait time is approximately 10 months.

Robert Cattanach, a partner at the international law firm Dorsey & Whitney, has previously worked as a trial attorney for the United States Department of Justice and was special counsel to the Secretary of the Navy. Today he practices in the areas of regulatory litigation, including cybersecurity and data breaches, privacy and telecommunications, civil and criminal enforcement proceedings and international Regulatory Compliance. He has been following this closely and said:

In a keenly watched case, the US Supreme Court has agreed to review a decision by the Second Circuit Court of Appeals that Microsoft did not have to turn over user data stored overseas in response to a microsoftsearch warrant issued under the Stored Communication Act. The case pits the interests of law enforcement access to information against concerns over government overreach and could have ramifications globally as other nations likely will adapt their policies regarding access to information stored in other countries based on what the US Supreme Court decides. Privacy advocates have decried the prospect of borderless search authority by governments across the world, while law enforcement has painted the specter of criminal activities being shielded by convenient placement of data. All of this is being played out as the European Union continues its review of the Privacy Shield measure that allows the transfer of personal data of EU residents to the US under the presumption that it can be adequately protected.

Microsoft and other tech companies advised the court not to hear the case, saying the justices should leave it to Congress to update the 1986 law and deal with the many complexities that surround worldwide electronic data storage. The law carves out an exception for law enforcement needs but does not include data kept in other countries. According to Deputy Solicitor General Jeffrey Wall:

Under this 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.

If the United States can freely seize foreign data, other governments will want to do the same. This may put U.S. consumers’ privacy in jeopardy and tech companies like Microsoft will not have a legal ground to refuse.

The case will pit federal and state officials against the technology industry, which has lined up behind Microsoft in the litigation. The court will hear arguments early next year and rule by June. The outcome of Microsoft’s case will shape the future of law in the U.S. and abroad when it comes to the cloud. The case has international implications and has the attention of tech companies worldwide.

By Cherese Jackson (Virginia)

Sources:

Gizmodo: Justice Department Tries to Take Microsoft Email Warrant Fight to Supreme Court
Chicago Tribune: Microsoft email-access fight with U.S. gets Supreme Court review
Bloomberg: Microsoft Email-Access Fight With U.S. Gets Top Court Review

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