By Robert Barnes | Washington Post

WASHINGTON – The Supreme Court on Monday accepted a second important case on digital privacy, agreeing to hear a dispute between the federal government and Microsoft about emails stored overseas.

The justices increasingly have been called upon to settle legal battles between law enforcement and technology companies, and to interpret laws written before the technology revolution that now raise pertinent questions about privacy.

The justices next month will hear a case involving prosecutors’ access to the historical data stored in cellphone tower records.

Legal experts noted that the court accepted both that case and the one involving Microsoft even though there was no split among lower courts on the law underlying the decisions, something that usually happens before the Supreme Court gets involved.

“It’s plausible that the splitless grants in both [cases] signal a recognition among the justices of the tremendous importance of digital evidence collection,” George Washington University law professor Orin Kerr wrote in a blog post. “Whatever the right answers are, the justices need to provide them.”

The case the court accepted Monday began in 2013 when U.S. prosecutors got a warrant to access emails in a drug-trafficking investigation. It was served on Microsoft in Redmond, Washington. But the data sought was stored on its servers in Ireland. (The company has more than 100 centers in 40 countries.)

Microsoft turned over information it had stored domestically but contended that U.S. law enforcement couldn’t seize evidence held in another country. It said that if it was forced to turn over such information, it would lead to claims from other countries about data stored here.

A judge upheld the warrant, but a panel of the U.S. Court of Appeals for the 2nd Circuit overturned the ruling. The full circuit then split evenly on whether that decision was correct, and one judge wrote that the Supreme Court needed to provide the ultimate answer.

The Justice Department asked the justices to do just that and to reverse the lower court. It said that a “domestic recipient of a subpoena is required to produce specified materials within the recipient’s control, even if the recipient stores the materials abroad.”

Thirty-three states also urged the court to take the case, U.S. v. Microsoft. They said that the decision has implications for other technology giants such as Google and Yahoo and that it was “remarkable” that the 2nd Circuit had held “that a private company has unfettered discretion to shield evidence of crime from law enforcement, simply by electronically sending that evidence out of the jurisdiction.”

Deputy Solicitor General Jeffrey Wall told the court that “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.”

But Microsoft contends that the Stored Communications Act of 1986 did not imagine a world in which “a technician in Redmond, Washington, could access a customer’s private emails stored clear across the globe.”

In a blog posted after the court’s announcement, Microsoft president and chief legal officer Brad Smith wrote that the government’s position endangers privacy.

“If the U.S. government can unilaterally use a warrant to seize emails outside the United States, what’s to stop other governments from acting unilaterally to seize emails stored inside the United States?” Smith wrote. “At a time when countries are rightly worried about foreign government hacking, the DOJ’s interpretation would open the door to accomplishing the same thing.”

But the company had urged the court to stay out and allow Congress to amend the law, which Smith noted the Justice Department has asked Congress to do.

“The current laws were written for the era of the floppy disk, not the world of the cloud,” Smith wrote.

The justices already are scheduled to consider in late November whether police need a warrant to access cellphone location data held by wireless service providers, another major case involving digital privacy.

The court accepted two other cases Monday that touch on law enforcement.

In one, the justices will decide whether defendants can suppress wiretap evidence if the warrant that allowed collecting the data exceeded the court’s discretion.

Brothers Los and Roosevelt Dahda were indicted on drug distribution conspiracy charges. In obtaining their convictions, the federal government relied on wiretaps authorized on several cellphones. Some of the incriminating evidence was gathered when the cellphones were outside Kansas, where the authorizing judge was located.

A panel of the U.S. Court of Appeals for the 10th Circuit agreed that a federal law seemed to say such evidence could be suppressed. But it reasoned that the evidence from the warrant did not violate Congress’s “core concerns” of privacy and uniformity when it wrote the law.

Justice Neil Gorsuch sat on the panel that heard the case, although he was not part of the rendered decision. He recused himself from the case, Dahda v. U.S., when it got to the Supreme Court.

The court will also decide a double-jeopardy case from Virginia. Michael Currier was charged with three counts arising from the theft of a safe that contained cash and 20 guns. He was charged with breaking and entering, grand larceny, and being a felon in possession of a firearm, which referred to the guns inside the safe.

To keep the jury from being prejudiced by the knowledge that Currier was a felon, he and the commonwealth agreed to have the charges tried separately.

A jury found Currier not guilty of the first two charges, which involved stealing the safe. But over Currier’s objections, prosectors then tried him on the third charge – possession of the guns – and this time a different jury convicted him. He was sentenced to five years in prison.

Lower courts did not agree with Currier that the second trial was a violation of his constitutional protections against being tried repeatedly for the same offense.

The case is Currier v. Virginia.