The U.S. Supreme Court agreed Oct. 16 to reconsider the government's case against Microsoft Corp. in a dispute over digital privacy and emails stored abroad.
The case goes back to 2013, when U.S. prosecutors issued a warrant directing Microsoft to "seize and produce" the contents of an email account belonging to a user connected to a drug-trafficking case. While Microsoft provided some information to the government that was stored in a server domestically, it declined to turn over customer content that was stored in a server in Ireland.
"We challenged the warrant that resulted in this ligation because we believed U.S. search warrants shouldn't reach over borders to seize the emails of people who live outside the United States and whose emails are stored outside the United States," Microsoft President and Chief Legal Officer Brad Smith explained in an Oct. 16 blog post. He added that if U.S. law enforcement can obtain the emails of foreigners stored outside the U.S., the government of another country might similarly argue it should be able to access the emails of U.S. citizens, including those emails stored domestically.
In July 2016, a panel for the U.S. Court of Appeals for the Second Circuit ruled in favor of Microsoft in the case, finding that U.S. Congress did not give the U.S. government the authority to use search warrants to reach beyond U.S. borders. The U.S. Department of Justice appealed that decision, asking for a full court review, but the court denied that petition.
Now, though, with the Supreme Court having agreed to take on the case, Microsoft and the U.S. Department of Justice will once again have the opportunity to present their sides of the argument.
In his blog post, Smith laid out Microsoft's primary concerns. First, the internet giant disagrees with the government's argument that customer email is the property of the email provider, not the customer. That interpretation, Smith said, would "cause people to lose their rights when they go online." Second, turning over emails stored overseas would create conflicts with the laws of countries in Europe and elsewhere around the globe. And third, Microsoft said the case contradicts the basic premise that before a U.S. statute reaches across another country's borders, it should be clear that was what Congress intended when it passed the law.
The Justice Department, meanwhile, has argued that a warrant issued under the Stored Communications Act, which is part of the Electronic Communications Privacy Act of 1986, should act as a subpoena rather than a traditional warrant and require "the recipient to deliver records, physical objects, and other materials to the government" no matter where those documents are located, so long as they are subject to the recipient's custody or control.
In addition to fighting the case in court, Microsoft and other tech companies have continued to lobby for Congressional action to address the question of digital privacy.
"We believe that rather than arguing over an old law in court, it is time for Congress to act by passing new legislation, such as the International Communications Privacy Act (ICPA) of 2017," Smith said.
Earlier this year, Sens. Orrin Hatch, R-Utah, and Chris Coons, D-Del., introduced a version of the bill in the Senate. The bill requires law enforcement agencies to obtain a warrant for the contents of electronic communications, but also clarifies that U.S. law enforcement can obtain the electronic communications of U.S. persons and persons located inside the U.S. pursuant to a warrant, regardless of where those communications are located. In September, a similar bill was introduced in the U.S. House of Representatives.
Both the Senate and House versions of the bill have been referred to committees for review.