The fight over the privacy of electronic communications and the government’s ability to reach emails stored abroad in criminal investigations has finally moved to the U.S. Supreme Court.
After years of litigation between federal prosecutors and the tech community over the reach of warrants issued under the Stored Communications Act (SCA), the Supreme Court has scheduled oral argument in United States v. Microsoft for February 27, 2018.
In the case, the justices will decide whether U.S. law enforcement, when armed with a valid warrant issued under the SCA, can obtain data physically stored outside of the country. The case will turn on the Court’s interpretation of the SCA—a law adopted more than 30 years ago as part of the Electronic Communications Privacy Act—when email and digital communications were in their infancy.
The U.S. Court of Appeals for the Second Circuit limited the application of an SCA warrant to within U.S. borders since Congress did not give any indication in the law that extraterritorial application was intended. In a concurring opinion, Judge Lynch appealed to Congress to act and update the outdated law. Legislation has been proposed to revise the SCA.
Similar cases have been litigated across the country but with differing results. We’ve been covering one such case—the dispute between the government and Google over the company’s refusal to hand over customer accounts and emails stored abroad. The government obtained an SCA warrant for access to this account information, which included not only emails but also contacts, files, location history, and search history. Google partially complied with the warrant by turning over information that was stored domestically, but filed a motion to quash the warrant to the extent it compelled production of data stored abroad. U.S. District Judge Richard Seeborg rejected Google’s arguments—and in so doing, also rejected the Second Circuit’s interpretation of the SCA in the Microsoft case, discussed here—and ordered Google to hand over customer email traffic, wherever located, to U.S. law enforcement. After that, the U.S. Supreme Court agreed to hear the government’s appeal of Microsoft, as we discussed here.
Google appealed Judge Seeborg’s decision to the Ninth Circuit, but asked it to delay briefing until after the Supreme Court’s ruling in Microsoft. In its motion for a stay, which the government did not oppose, Google reasoned that a decision in Microsoft will potentially resolve or at least “significantly influence” the outcome of its appeal. Google also noted that it is involved in another SCA appeal pending in the D.C. Circuit, which agreed to stay the briefing pending the Microsoft decision. The Ninth Circuit granted Google’s motion and has pushed back the briefing in the appeal to the summer.
Meanwhile, in Microsoft, the government has filed its opening brief urging reversal of the Second Circuit’s sharply divided ruling for the company. As before, the government insists that requiring the disclosure of data stored abroad does not result in the warrant being applied extraterritorially, because the actual disclosure happens in the United States, when a U.S.-located employee accesses it and turns it over to the government here. The government also likens the SCA warrant to a subpoena, and notes that the recipient of a subpoena is required to disclose the requested records regardless of where she has chosen to store them. The government further argues that the Court should not sanction a location-based rule that companies could exploit by moving all their data out of the United States. Finally, the government contends that concerns about international comity or discord are “overstated” and do not merit overriding what the government argues is the best reading of the SCA.
The government’s brief can be read here. We’ll continue to keep an eye on the Microsoft and Google cases in the coming months.