Even as the U.S. Supreme Court heard oral arguments on Feb. 27 regarding a case that raises questions about the reach of domestic search warrants when electronic data is stored on servers overseas, several justices suggested that the matter would best be resolved by Congress updating a 1986 law concerning stored communications.
The case in question dates back to 2013, when U.S. prosecutors issued a warrant directing Microsoft Corp. 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.
Justices Ruth Bader Ginsburg and Sonia Sotomayor emphasized that the law in question — the 1986 Stored Communications Act — was written before email and cloud computing were prevalent, and said Congress should play a key role in finding a solution.
"If Congress takes a look at this, realizing that much time ... and innovation has occurred since 1986, it can write a statute that takes account of various interests," Ginsburg said.
"Why shouldn't we leave the status quo as it is and let Congress pass a bill in this new age?" added Sotomayor.
Justice Samuel Alito also suggested Congress should address this issue, but in the meantime, he asked what happens if a U.S. citizen is being investigated for crimes in this country, and the government shows probable cause that there is evidence of crime in emails that are "in the possession of an American Internet service provider" that has stored the information overseas.
Microsoft attorney Joshua Rosenkranz responded by saying U.S. prosecutors would seek help from that country's government through a mutual legal assistance treaty. "If it's urgent for the government, the other governments respond urgently," Rosenkranz said.
Chief Justice John Roberts suggested that Microsoft's argument means the government would be unable to obtain an email sent from the Supreme Court building to someone just a block away, for instance, if Microsoft chose to store the email on a server outside the U.S.
Nothing would keep Microsoft "from storing United States communications, every one of them, either in Canada or Mexico or anywhere else, and then telling their customers: Don't worry if the government wants to get access to your communications; they won't be able to" without help from a foreign government, Roberts said. He did not air any thoughts on Congress' responsibility to change the law on the matter.
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 the 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.
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.
In 2017, Sens. Orrin Hatch, R-Utah, and Chris Coons, D-Del., introduced a version of the International Communications Privacy Act of 2017 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 2017, a similar bill was introduced in the U.S. House of Representatives.