Supreme Court agrees to hear DOJ petition in Microsoft data warrant case

by Abel Hampton October 18, 2017, 0:07

The Supreme Court has agreed to hear a case on whether data concerning foreign individuals stored on foreign servers can be accessed under the auspices of United States law.

The Supreme Court disclosed in its order list released on Monday that it will take up the case, US v. Microsoft, in which federal investigators sought data from Microsoft that was stored on servers in Ireland. A lower court ruled past year that it did does not, meaning that the Justice Department needs to follow the same procedures used to obtain physical evidence stored outside the United States.

In the underlying case, the government in 2013 sought a warrant requiring information about a Microsoft email account that prosecutors believed was being used for narcotics trafficking. This may put USA consumers' privacy in jeopardy and tech companies like Microsoft will not have a legal ground to refuse.

Smith also mentioned that the current laws in place apply to the "era of the floppy disk, not the world of the cloud".

Microsoft turned over the information, but went to court to defend its decision not to hand over the emails from Ireland.

Microsoft may have won its fight to protect overseas data from American search warrants, but it can't rest easy. "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", the government argued.

Microsoft said the appeals court was correct to limit the use of a warrant for information held overseas. Prosecutors say a ruling in favour of Microsoft could undermine a range of criminal investigations.

"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 created to prohibit, absent clear authorization by Congress", Microsoft said in court papers.

If the United States can freely seize foreign data, other governments will want to do the same.

In any case, Microsoft President and Chief Legal Officer, Brad Smith, believes that this law is not relevant in today's world.

Price pointed to legislation reintroduced to the House of Representatives at the time to protect against warrantless searches of private emails. The court will hear arguments early next year and rule by June.

Writing for the four votes in favor of a rehearing, U.S. Circuit Judges Dennis Jacobs argued that the location of Microsoft's headquarters in the United States makes the location of the servers immaterial. "Congress can and should act swiftly within this narrow window to develop a workable global framework for lawful government access to data stored in the cloud".

Microsoft and other organizations are calling on Congress to get with the times. Unlike most cases regarding privacy, the case does not hinge on Fourth Amendment rights against unreasonable search and seizure, but the Stored Communications Act of 1986 on electronic records and privacy.

Sen. Orrin Hatch, an archconservative Republican from Utah, has supported the Department of Justice's expansive vision of its seizure power around the world with the Law Enforcement Access to Data Stored Abroad Act.

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