Supreme Court looks to Congress to settle U.S.-Microsoft data dispute

Richard Wolf | USA TODAY

Show Caption Hide Caption Supreme Court hears 'most important tech case ever' The Supreme Court on Tuesday heard arguments in a dispute between the Trump administration and Microsoft Corp. over a warrant for emails stored in the internet cloud outside the United States. One analyst calls it the "most important tech case ever." (Feb. 27)

WASHINGTON – The Supreme Court wrestled Tuesday with an international dispute over emails between the federal government and Microsoft that it clearly wishes Congress would resolve.

A majority of justices appeared to sympathize with the government's demand that the technology giant turn over emails tied to a drug trafficking investigation. The data are stored in a computer server in Ireland, protected by an outdated federal law that does not address global transactions.

That left open the possibility that the court would rule in Microsoft's favor but urge Congress to update the law to help law enforcement get around the question at the heart of the case: Where is the action occurring?

The government's position, argued by Deputy Solicitor General Michael Dreeben, is that issuing a warrant for emails from a U.S. service provider to investigate a U.S. crime is "classically domestic conduct." He drew support from some of the court's conservatives.

"It seems to me that the government might have a strong position ... that the statute focuses on disclosure" rather than storage, Chief Justice John Roberts said during oral argument. "And disclosure takes place in Washington, not in Ireland."

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Microsoft's position, defended by its attorney Joshua Rosenkranz, is that the Stored Communication Act of 1986 was intended to secure data. The emails "are stored in Ireland, and the government is asking us to go and fetch them from Ireland," he said.

That argument prompted several of the court's more liberal justices to suggest that the proper course might be to leave the statute alone for Congress to fix.

"In, what was it, 1986, no one ever heard of clouds. This kind of storage didn't exist," Justice Ruth Bader Ginsburg said. "Wouldn't it be wiser just to say, 'Let's leave things as they are'? If Congress wants to regulate in this brave new world, it should do it."

Congress is trying to do just that. Bipartisan legislation has been introduced that would enable the government to get data from overseas with a warrant but maintain consideration of privacy laws and interests of other nations.

Dreeben warned the court against leaving the issue to an "uncertain legislative process," and Justice Samuel Alito agreed. "In the interim, something has to be done," he said.

The problem for the court is a familiar one — applying old laws to new technology. The law governing storage and access to data was enacted before the World Wide Web existed. Today, Microsoft stores data on about 1 million servers in 40 countries.

The U.S. Court of Appeals for the 2nd Circuit sided with Microsoft in 2016. Federal and state officials said that since then, Google and other technology companies have blocked access to data stored overseas.

If the government wins access to the data, it could lead to what company President Brad Smith last week called "international tension and chaos."

"It would instigate a global free-for-all, inviting foreign governments to reciprocate by unilaterally seizing U.S. citizens’ private correspondence," Microsoft argued in court papers.

A Microsoft victory, the government argued, would stifle criminal investigations. "A provider could move all information about U.S. subscribers beyond the reach of U.S. law enforcement simply by building its servers outside the United States," it contended.