United States v. Microsoft
In the coming weeks and months we can expect some blockbuster decisions from the Supreme Court on a range of important constitutional and pubic policy issues. Unlike last year's term, the October 2017 term could not be more exciting for constitutional scholars, observers of the nation's highest tribunal, and public policy junkies. The Court has agreed to hear an unusual number of high-profile cases, probably in part because it now has the full compliment of 9 justices for a full term for the first time since the death of the conservative judicial lion, Antonin Scalia.
None of the Court's determinations will be more important and significant than the one it renders in United States v. Microsoft. Oral arguments were held February 27th and the announcement of the Court's opinion will likely come near the end of the term in late June. The core issue in Microsoft is the power of the Department of Justice to compel Microsoft to release the emails of a suspected drug trafficker. The Department needs those records to help build its case against the alleged nefarious criminal. Microsoft has stored the communications on a server located in Ireland. The Department of Justice obtained a search warrant based on probable cause, pursuant to the Stored Communications Act of 1986. Microsoft, however, claims it cannot release the e-mails to DoJ. It asserts that the Stored Communications Act applies only on American territory, and that if it gives those e-mails to American law enforcement it will violate the sovereignty of Ireland, as well as the terms of business it agreed to in conducting its affairs there.
So there are a lot of important and fascinating moving parts to this case. One issue is the right to privacy, as protected by the Fourth Amendment to the Constitution, and the Stored Communications Act. Another is international law, and the United States' place in a legal and public policy regime that increasingly has transnational implications. Many observers agree strongly with Microsoft that the United States will violate Ireland's sovereignty if it is successful in getting information off the Irish server. Finally, the Court's holding in Microsoft will have really vital implications for data security issues, as Microsoft and other data giants divide and store the information they convey in countless servers and data points distributed across the globe. These corporations do so for many cogent business reasons. The Court's decision will have profound implications for tech giants as they decide how best to distribute and protect the data of their customers.
I'm going to write some other posts about this important case in upcoming months. There are a couple of observations, however, I'd like to make now. This a really difficult case for me to decide where I come down personally. I'm a strong advocate for personal privacy as protected through our nation's laws and the Constitution. This has been an ongoing issue in our politics really since at least the 1920s, when the Federal government first began to eavesdrop on criminal defendants in a systematic way pursuant to Prohibition. During the 1970s, the revelations of Watergate and the Church Committee added to our concerns that our privacy rights were constantly vulnerable to governmental intrusion. The Stored Communications Act, in fact, in many ways was a reaction to those revelations in the 1970s. And, of course, the Edward Snowden bombshells of 2013 taught us all that we need to remain vigilant to protect our privacy interests.
Crime and criminals, on the other hand, have become far more sophisticated and dangerous in their operations. They have become more international in their scope as well. The Federal Government has responded to these changes in internrational criminal enterprises and conspiracies by enacting ever-more sophisticated, far-reaching and nuanced criminal statutes since the early 1960s to catch the bad guys. All law-abiding citizens are concerned with our Government's ability to stop and punish effectively the purveyors of drugs and crimes. That's why we supported as a nation federal criminal laws that, beginning around 1970, began to target sophisticated drug trafficking, among other crimes.
As of right now, I'm coming down on the side of the Department of Justice in this case. The warrant requirement as provided for in the Stored Communications Act I believe provides protection, albeit imperfectly, for individual privacy. As for the issue of Irish sovereignty in this case, I tend here to agree with an argument made by the Feds before the Court. The geographical point where privacy issues need to be resolved is where the alleged criminal wrote and received his emails - the United States - not where the server is located - Ireland. The Stored Communication Act, via its warrant requirement, is tailored to protect citizens privacy in their bodies, their thoughts, and their communications in the United States.
I'm going to end this post with two predictions. First, I'm betting the Court comes down on the side of the Department of Justice. This is always hazardous gamesmanship, but I'm predicting a 5-4 opinion with Justices Roberts, Alito, Thomas , Gorsuch, and Kennedy in the majority. I believe Justice Sotomayor will write a strong dissent. In the last several terms, she has been arguing compellingly that we need to reconsider completely as a people the way we think about privacy in a growingly interconnected and electronic world. And Justice Sotomayor thinks the Court can take some important role in that reconsideration.
Secondly, I predict the Court decision in Microsoft will, ironically, not be the end of the issue. Congress will have to act here sooner or later to provide a more nuanced, flexible, and pragmatic solution to all these complex issues, since the Court in many ways is not suited to this task institutionally. The Stored Communications Act is now thirty years old. It was enacted before a time of emails, the Internet, and electronic data corporate giants with far-flung international operations. Congress needs to update the resolution of these issues it adopted during the Age of Reagan.
I'm looking for Congress to fill in these important voids as it considers and hopefully passes the CLOUD Act.
I'll be writing more about the Microsoft case in coming weeks. And I'll be giving more time and analysis to the CLOUD Act.
None of the Court's determinations will be more important and significant than the one it renders in United States v. Microsoft. Oral arguments were held February 27th and the announcement of the Court's opinion will likely come near the end of the term in late June. The core issue in Microsoft is the power of the Department of Justice to compel Microsoft to release the emails of a suspected drug trafficker. The Department needs those records to help build its case against the alleged nefarious criminal. Microsoft has stored the communications on a server located in Ireland. The Department of Justice obtained a search warrant based on probable cause, pursuant to the Stored Communications Act of 1986. Microsoft, however, claims it cannot release the e-mails to DoJ. It asserts that the Stored Communications Act applies only on American territory, and that if it gives those e-mails to American law enforcement it will violate the sovereignty of Ireland, as well as the terms of business it agreed to in conducting its affairs there.
So there are a lot of important and fascinating moving parts to this case. One issue is the right to privacy, as protected by the Fourth Amendment to the Constitution, and the Stored Communications Act. Another is international law, and the United States' place in a legal and public policy regime that increasingly has transnational implications. Many observers agree strongly with Microsoft that the United States will violate Ireland's sovereignty if it is successful in getting information off the Irish server. Finally, the Court's holding in Microsoft will have really vital implications for data security issues, as Microsoft and other data giants divide and store the information they convey in countless servers and data points distributed across the globe. These corporations do so for many cogent business reasons. The Court's decision will have profound implications for tech giants as they decide how best to distribute and protect the data of their customers.
I'm going to write some other posts about this important case in upcoming months. There are a couple of observations, however, I'd like to make now. This a really difficult case for me to decide where I come down personally. I'm a strong advocate for personal privacy as protected through our nation's laws and the Constitution. This has been an ongoing issue in our politics really since at least the 1920s, when the Federal government first began to eavesdrop on criminal defendants in a systematic way pursuant to Prohibition. During the 1970s, the revelations of Watergate and the Church Committee added to our concerns that our privacy rights were constantly vulnerable to governmental intrusion. The Stored Communications Act, in fact, in many ways was a reaction to those revelations in the 1970s. And, of course, the Edward Snowden bombshells of 2013 taught us all that we need to remain vigilant to protect our privacy interests.
Crime and criminals, on the other hand, have become far more sophisticated and dangerous in their operations. They have become more international in their scope as well. The Federal Government has responded to these changes in internrational criminal enterprises and conspiracies by enacting ever-more sophisticated, far-reaching and nuanced criminal statutes since the early 1960s to catch the bad guys. All law-abiding citizens are concerned with our Government's ability to stop and punish effectively the purveyors of drugs and crimes. That's why we supported as a nation federal criminal laws that, beginning around 1970, began to target sophisticated drug trafficking, among other crimes.
As of right now, I'm coming down on the side of the Department of Justice in this case. The warrant requirement as provided for in the Stored Communications Act I believe provides protection, albeit imperfectly, for individual privacy. As for the issue of Irish sovereignty in this case, I tend here to agree with an argument made by the Feds before the Court. The geographical point where privacy issues need to be resolved is where the alleged criminal wrote and received his emails - the United States - not where the server is located - Ireland. The Stored Communication Act, via its warrant requirement, is tailored to protect citizens privacy in their bodies, their thoughts, and their communications in the United States.
I'm going to end this post with two predictions. First, I'm betting the Court comes down on the side of the Department of Justice. This is always hazardous gamesmanship, but I'm predicting a 5-4 opinion with Justices Roberts, Alito, Thomas , Gorsuch, and Kennedy in the majority. I believe Justice Sotomayor will write a strong dissent. In the last several terms, she has been arguing compellingly that we need to reconsider completely as a people the way we think about privacy in a growingly interconnected and electronic world. And Justice Sotomayor thinks the Court can take some important role in that reconsideration.
Secondly, I predict the Court decision in Microsoft will, ironically, not be the end of the issue. Congress will have to act here sooner or later to provide a more nuanced, flexible, and pragmatic solution to all these complex issues, since the Court in many ways is not suited to this task institutionally. The Stored Communications Act is now thirty years old. It was enacted before a time of emails, the Internet, and electronic data corporate giants with far-flung international operations. Congress needs to update the resolution of these issues it adopted during the Age of Reagan.
I'm looking for Congress to fill in these important voids as it considers and hopefully passes the CLOUD Act.
I'll be writing more about the Microsoft case in coming weeks. And I'll be giving more time and analysis to the CLOUD Act.
Great thoughts and provocative commentary on a basic level for a common Joe like me. Thanks.
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