ACRU

Supreme Court Takes Microsoft Case Involving Privacy and Global Communications

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This column by ACRU General Counsel Ken Klukowski was published October 17, 2017 by Breitbart.

WASHINGTON, DC —- The Supreme Court on Monday agreed to hear a major case on digital privacy and global communications involving a suspected drug trafficker using an email account controlled by Microsoft.

This case examines how far federal law permits the U.S. government to extend its law-enforcement power overseas to U.S.-based companies operating abroad through technology.

The U.S. Department of Justice (DOJ) was pursuing a person believed to be involved in trafficking narcotics. The suspect uses an email service that is provided through Microsoft’s global network, so DOJ secured a search warrant invoking its power under the Stored Communications Act to require Microsoft to give DOJ access to that account to search for evidence to prosecute the suspected trafficker.

Microsoft controls the account, but determined that much of the requested emails were stored in a datacenter in Dublin, Ireland. Microsoft’s lawyers decided that DOJ’s search warrants were not valid on foreign soil, and filed suit in U.S. District Court for the Southern District of New York to block the search warrant.

The federal district court denied Microsoft’s motion to quash, but the U.S. Court of Appeals for the Second Circuit reversed, holding that the search warrant had legal force within the United States, but not in Ireland.

DOJ filed a petition for certiorari with the U.S. Supreme Court, asking the justices to review the case. The Court has granted the petition, and will hear the case early next year.

Although the Constitution’s Fourth Amendment is relevant whenever search warrants are involved, the question in this case is whether the Stored Communications Act has extraterritorial reach, meaning whether Congress intends its power to extend to foreign lands.

One of the greatest challenges courts currently face is how to apply the requirements of the Constitution and correctly interpret federal statutes in the context of an increasingly globalized world with new technologies.

The case is United States v. Microsoft Corp., No. 17-2 at the Supreme Court.