Microsoft email-access fight with US gets top court review

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This photo taken with a fisheye lens shows Microsoft signage outside the Microsoft Visitor Centre in Redmond. (Ted S Warren, AP, file)

Washington – The US Supreme Court agreed on
Monday to decide whether law enforcement officials conducting a
criminal investigation can demand data held overseas by

Microsoft and other technology companies in a high-stakes clash
over digital privacy.

The justices will review a federal appeals ruling that the Trump
administration says has become a major obstacle in criminal probes.
Already, Google and Verizon Communications’ Yahoo have
stopped complying with search warrants for emails and other user data
stored outside the country, the Justice Department said.

The case centres on a 1986 digital-privacy law and a carve-out that
lets law enforcement officials get access to electronic information once
they obtain a warrant. A lower court said the measure doesn’t extend to
data kept in other countries, siding with Microsoft in a dispute over
emails stored on a server in Ireland.

“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,” Deputy Solicitor General

Jeffrey Wall argued in court papers.

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.

Microsoft urged 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 current laws were written for the era of the floppy disk, not
the world of the cloud,” Microsoft President and chief legal officer

Brad Smith said in a blog posting after the court acted. “We believe
that rather than arguing over an old law in court, it is time for
Congress to act by passing new legislation.”

Congressional efforts to address the issue have stalled in recent years. In the current Congress, Republican Senator

Mike Lee of Utah and Democratic Senator

Patrick Leahy of Vermont are pushing legislation that would update the 1986 measure, known as the Stored Communications Act.

The high court is already considering whether law enforcement
officials must get a warrant to obtain mobile-phone tower records that
show someone’s location over a period of months. That case also

involves the Stored Communications Act, which says officials can demand
that information from telecommunications providers without getting a
warrant.

Drug investigation

The Microsoft dispute stems from a 2013 federal effort to get emails
that the government says would show evidence of drug trafficking.
Officials obtained a search warrant, but Microsoft refused to turn over
the information, taking the matter to court instead.

The New York-based 2nd US Circuit Court of Appeals eventually

ruled that the company didn’t have to provide the data. A three-judge
panel said the Stored Communications Act wasn’t designed to cross
international boundaries.

“Neither explicitly nor implicitly does the statute envision the application of its warrant provisions overseas,” Judge

Susan Carney wrote. A larger panel of judges later refused to reconsider the ruling on a 4-4 vote.

Microsoft says its policy at the time of the search warrant was to
store email content in the data centre nearest to the customer’s
self-declared country of residence, while keeping account information on
US servers.

The unidentified person at the centre of the Supreme Court case
registered for his account as a resident of Ireland, according to one of
the lower court opinions. The company had data centres in 40 countries
as of 2014, according to court documents.

‘Roadmap for terrorists’

The Justice Department says the logic behind the appeals court
decision would apply even if the account holder were a US citizen
living and committing crimes in this country.

“The decision provides a roadmap for terrorists and criminals in the
United States to insulate electronic communications from US
investigators,” Wall argued. “They need do nothing more than falsely
state a location outside the United States when signing up for an
account.”

A group of 33 states joined the US in urging Supreme Court review.

Microsoft points to past Supreme Court cases that say laws shouldn’t
be read to intrude on another country’s sovereignty unless Congress
clearly says that’s its intent.

“Execution of a US warrant to seize documents in a foreign country
is precisely the kind of foreign incursion that the presumption against
extraterritoriality was designed to prohibit, absent clear authorisation
by Congress,” Microsoft said in court papers.

Microsoft says the case could make Americans more vulnerable to probes by foreign governments.

“If US law enforcement can obtain the emails of foreigners stored
outside the United States, what’s to stop the government of another
country from getting your emails even though they are located in the
United States?” Smith said in his blog post.

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