Court grapples with warrant powers for emails stored overseas

The Supreme Court wrestled Tuesday with whether the government can search and seize the contents of emails that technology companies store overseas in a potential landmark battle over information stored in the cloud.

The case stems from Microsoft Corp.’s refusal to comply with a federal warrant for the emails of a customer that the government accuses of drug trafficking. 

Although the warrant was served on Microsoft’s headquarters in Redmond, Wash., the company said the warrant was invalid because the emails are stored in Dublin, Ireland, not the U.S. 

Justice Sonia Sotomayor asked why the justices shouldn’t just wait for Congress to resolve the issue, given the bipartisan bill that Sen. Orrin Hatch (R-Utah) has offered to make it easier for U.S. officials to create bilateral data sharing agreements and gain access to data stored overseas.

She said the court is encroaching on the very thing its jurisprudence seeks to avoid, which is create an international problem. 

The case could hinge on the court’s interpretation of the Stored Communications Act (SCA), which Congress passed in 1986 to protect the privacy of digital communications. Lawmakers carved out an exception to allow law enforcement to obtain a warrant for the content of stored communications. {mosads}

Microsoft argues that lawmakers deliberately used the term warrant in the law, which has territorial limits. Congress never intended to give law enforcement the power to search and seize communications stored overseas, the company says.

The government rejects that argument, saying the law is focused on who is disclosing the information, not where it is being stored.  

“And we think the court should leave things as they are with the instrument that Congress authorized, operating on a person, and requiring that person to produce information regardless of whether it’s stored overseas,” Deputy Solicitor General Michael Dreeben said.

“Microsoft here made a unilateral decision to move information overseas,” he said. “Nothing in the law requires it. Nothing in the law prohibits it.”

Chief Justice John Roberts struggled with the idea that, under Microsoft’s reading of the law, there would be nothing to stop a company from storing all emails overseas to avoid the reach of law enforcement. 

Roberts said Microsoft might even gain clients in assuring this kind of protection from government invasion.

Microsoft’s attorney, Joshua Rosenkranz, argued that people who want to break the law and put emails outside the reach of the federal government aren’t going to use the company’s services to start with.

“They use services that are sold specifically with the promise that we have no U.S. presence and, therefore, you can trust us to keep it under lock and key from the U.S. government,” he said.

Sotomayor and the court’s often swing vote, Justice Anthony Kennedy, questioned whether it would be difficult for Microsoft to fetch the emails from Ireland, but had trouble visualizing how it’s actually done.

“Something has to happen electronically or with human intervention?” Kennedy asked.

Things then got a little sticky when Rosenkranz told Kennedy the emails would be pulled by a robot.

“I’m sorry I guess my imagination is running wild,” Sotomayor said, drawing laughs from the crowd. “Who tells the robot what to do and what does the robot do?

Hatch was seated front and center for the hourlong arguments Tuesday as the justices discussed the Clarifying Lawful Overseas Use of Data Act he introduced earlier this month.

The senator also submitted a bipartisan friend of the court brief in the case, with Sen. Christopher Coons (D-Del.) and Reps. Doug Collins (R-Ga.), Darrell Issa (R-Calif.) and Hakeem Jeffries (D-N.Y.) urging the court not to extend the meaning of SCA.

A ruling in favor of the government, the lawmakers said in their brief, could have dangerous repercussions for future lawmaking and foreign relations. Applying a U.S. law to conduct abroad, they argued, could lead foreign nations to retaliate by applying their law to conduct within the United States. 

“Congress can legislate with respect to conduct outside the United States, in excess of the limits posed by international law,” they wrote. “But the presumption against extraterritoriality ensures that that weighty decision is reserved for Congress, not the courts, to make in the first instance.”

Dreeben argued the court should not wait for Congress. 

“I think this court’s normal practice is to decide cases before it based on the law as it exists, rather than waiting for an uncertain legislative process,” he said.  

He said the practice of the high court has been to decide cases based on existing law, not rely on an uncertain legislative process. 

The Microsoft case is the second time this term that the justices have had to weigh the boundaries of digital privacy when law enforcement officials come searching for information in connection with a crime.

In November, the court heard oral arguments on whether cellphone location data is searchable without a warrant. A decision in that case is expected before June.

Justice Samuel Alito seemed to agree.

“It would be good if Congress enacted legislation that modernized this, but in the interim, something has to be done,” he said.