Judge goads Congress in Microsoft warrant case

Many predict Congress will eventually have to step in to define the geographical limits of a U.S. warrant to collect emails — but one appeals court judge is not holding his breath. 

“I do think the one thing that probably everyone agrees on is that, as so often, it would be helpful if Congress would engage in that kind of nuanced regulation, and we’ll all be holding our breaths for when they do,” U.S. Appellate Judge Gerard Lynch said Wednesday while concluding oral arguments in a case between Microsoft and the government.

The issue is central to Microsoft’s fight against a U.S. warrant demanding it turn over a user’s email account stored at a data center in Dublin, Ireland. 

The case, which has broader economic and privacy implications for the cloud storage industry no matter the outcome, was argued in front of the U.S. Court of Appeals for the Second Circuit on Wednesday.

At one point during the hearing, when a Microsoft lawyer predicted there is a 100 percent chance Congress will act quickly on the issue, Lynch mockingly shot back: “In the 12 days that they’re going to be in session deciding the budget and so on.”

At another point he questioned why Congress would act fast now after not touching the law for decades, going back to “the archaic 1980s, pre-Internet, but now they’re going to act quickly.”

Lawmakers in both chambers have introduced legislation on the issue, but it has yet to receive any committee or floor action. Congress returned from August recess with only a dozen working days left to fund the government, and they also must handle the nuclear Iran deal.

Microsoft lawyer Josh Rosencranz framed the eventual court ruling as an “interim” decision until legislators can step in, noting the tech industry’s storage of data around the world is only a few years old and could not have been imagined by the authors of the 1986 law that currently governs law enforcement access to electronic communication. 

The government, however, argues that the case should not turn on where the information is stored. Instead, it should focus on who is disclosing the information — Microsoft, a U.S.-based company under the government’s jurisdiction.

One of the three judges hearing the case, Susan Carney, appeared convinced by Microsoft’s reasoning at one point: “It’s about storage, it’s the Stored Communications Act, it’s about how to manage storage and under what circumstances certain kinds of disclosure can be made as exception to the basic rule about storage. Is that wrong?”

Lynch, however, appeared most sympathetic to the government’s view. 

“There is no regulation of how you store it or where you store it or when you store it or anything like that,” he said. “It’s a prohibition on disclosure. [That is the] focus here, is it not?”

The government’s case hinges on how a warrant is defined in relation to electronic communication. 

It cited past cases where a subpoena was used to get business records stored overseas. But warrants are understood to apply only within the United States.

The government argues a warrant for emails is a kind of warrant-subpoena hybrid, which requires a warrant-level legal standard to obtain but acts as a subpoena to compel the production of material. 

Judge Victor Bolden said that reading “seems to fall a little flat.”

Microsoft’s lawyer also warned it is “very scary” for the government to compare emails to Microsoft’s business records.

“It is foreign to any suggestion that U.S. courts have ever adopted,” Rosencranz said. 

One of Microsoft’s biggest warnings is that compliance with the warrant would invite other countries to seize U.S. citizens’ correspondence in similar situations — when it is housed in the United States but maintained and accessed by a foreign-based company.

The Justice Department conceded that is of “some concern” but called it a “norm” of international law that countries can compel companies in their jurisdiction to turn over information.