Cloudy Over United States v. Microsoft

Julia Shackleton – With over twenty-three amicus briefs filed in support of Microsoft, backed by 288 signatories ranging from members of Congress, European lawmakers, and leading tech companies, to advocacy groups representing millions of members across 37 countries – Microsoft has received support for its case in United States v. Microsoft to say the least. Oral Arguments were set forth on February 27th, when the United States Supreme Court wrestled with the issue of whether the U.S. government could use a warrant to compel a U.S. company, presently, Microsoft, to produce data stored in a server overseas.

Microsoft Corporation is a United States business incorporated and headquartered in Redmond, Washington. Since 1997, Microsoft has operated a “web-based e-mail,” commonly known as Outlook.com. This system stores the contents of each user’s emails on a network of servers, which is housed in the respective datacenter. Generally, a customer’s email information and data content are stored at a datacenter located near the physical location identified by the user when subscribing to the service. Microsoft’s facilities sprawl throughout 40 countries with over 100 datacenters, serving over 1 billion customers and over 20 million businesses worldwide.

This case arose after a United States magistrate judge issued a warrant, under the Stored Communications Act (“SCA”), which directed Microsoft to produce the contents of a customer’s e-mail account. The warrant was founded on the basis of probable cause that the account was being used in furtherance of drug trafficking. The warrant was served on Microsoft at its headquarters in Washington. However, the e-mail account in question stores it pertinent data at a datacenter in Dublin, Ireland. Thus, the question posed is whether the SCA possesses such great length to reach into foreign territories, specifically under principles of comity.

Microsoft and amici posit that a multitude of issues will follow if the U.S. government is allowed to seize electronic information stored overseas by means of a warrant, without adhering to the laws of the respected foreign nation. First, permitting law enforcement to use a warrant to obtain data stored on non U.S. servers will have a detrimental impact on the U.S. economy in this $250 billion cloud-computing industry. U.S. technology companies have been at the forefront of cloud computing; a technology that maintains the capacity to store essentially limitless digital data at such a low expense. Cloud technology offers remote accessibility from any location in the world and greater protection against hacking to its users. Thus, allowing the government to unilaterally reach into any foreign datacenter without deferring to foreign law, will eviscerate the public trust in U.S. cloud service providers, ultimately hindering the ability of these companies to compete in the global market.

Additionally, such permissibility raises the privacy concern that will put Americans’ emails at risk and create international tensions. A decision in favor of the government could diminish privacy as other nations will reciprocate by demanding highly confidential information belonging to U.S. individuals without complying with United States law.

DOJ attorney, Michael Dreeban, countered this privacy argument, noting, “the government has the gold standard of an instrument to address privacy interest here: a probable-cause-based warrant issued by a judge that describes with particularity what we want.” Additionally, waiting for Congress to create new law or going through the Mutual Legal Assistance Treaty (“MLAT”) will only cause headaches and substantial delays for the government. In fact, if Microsoft prevails, the company could transfer all U.S. customer data to servers outside the U.S., thus placing it out of the government’s reach.

However, this litigation hinges on the SCA, which was enacted in 1986, long before the “cloud” was conceivable and when email was far from a common place medium. Microsoft President Brad Smith stated, “There is only one institution in this country that can balance all of the careful nuances that need to be considered . . . [t]hat institution is across the street . . .  it is the United States Congress.”

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