Month: February 2018

Supreme Court Hears Oral Arguments In Microsoft Email Case

The Supreme Court held oral arguments in the Microsoft case on Tuesday. The case centers on jurisdictional limits for warrants issued under the Stored Communications Act. The government believes there should be no limits, not if it serves the warrant domestically. Microsoft, the recipient, informed the US the communications it sought resided in an Irish server, beyond the reach of the SCA.

The Second Circuit, in consecutive decisions, found in favor of Microsoft. If the government wants access to communications stored in overseas servers, it needs to work with that country’s government to obtain them. After all, the US government certainly doesn’t want other countries deciding their laws take precedence over our own and bypassing assistance treaties to obtain communications stored here.

Or maybe it does. Or maybe the DOJ just doesn’t care about collateral damage. Either way, its appeal is being heard by the Supreme Court, which has a chance to alter an old law (1986’s SCA) in a bad way. The government got off on the wrong foot by claiming its demand for communications wasn’t a search. From the transcript [PDF]:

[Michael] DREEBEN [DOJ Deputy Solicitor General]: Mr. Chief Justice, and may it please the Court: Section 2703 of the Stored Communications Act focuses on classically domestic conduct. It requires disclosure in a court order by the United States of information related to United States crime and here by a United States service provider.

JUSTICE SOTOMAYOR: It actually requires a search. It’s — the disclosure here is really a substitute for the government’s searching. The Act permits the government to have a warrant and go in and search for these materials or, in the alternative, to ask the source to do its own search and then turn the materials over. So why — you describe it as if it’s only a disclosure, but it’s really a search.

Dreeben argued that the demand for communications isn’t a search because the search is performed by the service provider. While it’s true the government isn’t going into Microsoft data centers and digging through servers, the fact is the search would not be taking place if the government hadn’t requested one to be performed. It may be outsourcing the actual search, but Microsoft has zero interest in these communications until the government steps in and says it wants them. Dreeben is splitting hairs, but they’re hairs that have been split for more than 30 years, when the SCA granted the government the power to obtain certain records and communications from service providers.

The government’s lawyer also asserted that the SCA explicitly provides for the acquisition of overseas data. But the arguments made show that isn’t the case. It governs production of data by US service providers. It says nothing about demanding they produce info stored in other countries. The DOJ wants the law to be read as allowing for the acquisition of overseas data, so long as the warrant is served in this country.

Justice Sotomayor challenged this assertion, pointing out a couple of relevant things. First, the law is more than 30 years old. Second, the point of territorial limits (one of them) is to avoid upsetting the international apple cart.

This is a 1986 statute. The reality in 1986, if you look at the statute and its reference to stored records, to stored communications, was — it’s a past technology, old concept. But I think it’s fair to say that back then they were thinking that where these materials were stored had a geographic existence in the United States, not abroad or nowhere else, and that they were protecting the communications that were stored in particular locations.

Things have changed. But what you’re asking us to do is to imagine what Congress would have done or intended in a totally different situation today. And the problem that Justice Ginsburg alludes to is the fact that, by doing so, we are trenching on the very thing that our extraterritoriality doesn’t want to do, what our jurisprudence doesn’t want to do, which is to create international problems.

She went on to note there’s legislation in the works that would lift territorial limits in cases like these, but limit (or attempt to) international fallout. Why not leave things the way they are and let Congress sort it out? The DOJ’s response is basically that Microsoft manufactured a problem with its refusal to comply with the SCA order, and now the US is out of step with data acquisition treaties made by (and with) other countries around the world.

The justices aren’t all that thrilled with Microsoft’s arguments either. Justice Alito pointed out Microsoft complied with SCA warrants prior to this challenge and that it always has the option to voluntarily disclose communications to the government. (The response from Microsoft’s lawyer — E. Joshua Rosenkranz — is that doing this would violate its relationship with its customers, who assume the company won’t just hand over info to law enforcement without being ordered to.)

There was also some discussion about the location of the servers and why this shouldn’t matter when it comes to responding to a court order. Rosenkranz pointed out that the DOJ still couldn’t access overseas emails even if it shoved the Microsoft employee aside and performed the search themselves. The instructions sent to retrieve the emails “land” in Ireland and the retrieval process begins, no matter who initiates the search. Trying to skirt territorial limits by using a domestic proxy doesn’t make it any less of a violation of domestic statutes or, in the case of Ireland, Ireland’s privacy laws.

It comes down to location, as Microsoft sums up. The fact that the papers sought are ones and zeroes should make no difference.

[T]he government asks this Court to grant it an extraordinary power, and it’s a power that Congress did not think it was granting law enforcement in 1986, and certainly did not intend to grant to every police officer and every sheriff’s deputy anywhere in the country. Back then, if the police needed to gather evidence from all over the world, they would have to engage with law enforcement everywhere else in those countries.

And they have the tools to do that, even though the DOJ portrays those as pretty much unworkable. Rosenkranz’s take is a little more optimistic.

JUSTICE ALITO: All right. Well, all right. The service provider has chosen to store it overseas. There’s no way to get the information, other than through these — these very time-consuming MLAT procedures?

MR. ROSENKRANZ: Well, Your Honor, the way to get the information is through MLATs, and the only evidence in this record about MLATs is that MLATs do work. If it’s urgent for the government, the other governments respond urgently.

It’s hard to say where the court’s sympathies lie. No one seems too impressed with Microsoft’s assertions it doesn’t have to respond to domestic warrants simply because someone chose to store their communications overseas. But, by the same token, no one’s sold on the DOJ’s assertions the SCA provides for extraterritorial searches. And, given its multiple appearances in the arguments, the court may simply decide to maintain the status quo and let Congress sort it out. This will force the DOJ to play by territorial guidelines until new laws are in place. It won’t be happy, but it managed to get the Rule 41 rewrite it wanted which allows it to execute warrants anywhere in the US, no matter where they were issued.

The SCA needs a rewrite, but a rewritten law that considers the DOJ to be the prominent stakeholder isn’t going to fix anything. Criminals have off-shored evidence for years now. A ruling for the status quo won’t substantially increase the number of scofflaws stashing communications on foreign servers, but a ruling against it would definitely damage international relationships, if not numerous internet-based communication platforms. The DOJ would like the Supreme Court to rewrite laws on the fly, which really isn’t its job. If the court decides it’s going to stay in its lane with this case, chances are Microsoft comes away with a win, even if it ends up being a momentary victory.

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