By Rebecca Stokem, National News Writer
On Monday, October 16th, The Supreme Court agreed to hear a digital privacy case between the Department of Justice and Microsoft. The court justices have been more frequently called upon to rule on legal matters involving data security, particularly involving law enforcement and large tech companies. They will hear U.S. vs. Microsoft next month, November, despite there being no discernable, traditional split in the lower courts. Rather than a normal appeal, the circuit courts have divided themselves fifty-fifty on the matter. The Washington Post quotes Orin Kerr, a law professor at George Washington University, who wrote, “It’s plausible that the split-less grants … signal[s] a recognition among the justices of the tremendous importance of digital evidence collection.”
The court case in question began back in 2013, when U.S. prosecutors were granted a warrant to gain access to emails related to a drug-trafficking case. The Department of Justice reviewed Microsoft’s center in Redmond, Washington. Microsoft handed over all relevant information that it stored domestically, but excluded emails that were stored on a server in Ireland, claiming that doing so would lead to claims from other countries about data being stored in the United States.
According to USA Today, when the controversy went through its first round in the courts in 2014, Microsoft lost. U.S. District Judge Loretta Preska said that the company had to turn over the emails stored overseas. Last year, however, the 2nd Circuit U.S. Court of Appeals reversed that decision and ruled in Microsoft’s favor instead. Afterwards, the full circuit split evenly over the validity of the decision; one circuit judge wrote that the Supreme Court needed to give the final answer on the matter. However, the even split did not cause any matter of conflict within the courts.
The Justice Department is asking the Supreme Court to uphold the initial decision and force Microsoft to hand over the emails stored on the Ireland server. Before the court accepted the case, the Trump administration put out a statement saying, “Neither the absence of a circuit conflict nor the speculative possibility of eventual legislative action diminishes the acute and present need for this court’s review of a legal unsound decision that is frustrating important investigations around the country.” Thirty-three states weighed in as well, siding with the federal government in a brief submitted by Vermont in which they encouraged the court to take the case as well. The brief stated that the results of this case would have a great impact on other tech giants like Google and Yahoo, who could take advantage of having the free choice to withhold important information.
In its defense, Microsoft has cited the 1986 Stored Communications Act, stating that when the law was made it was not imaginable that “a technician in Redmond, Washington, could access a customer’s private emails stored across the globe.” After the court’s announcement that it would hear the case, Microsoft president Brad Smith claimed that the government’s position threatens data privacy: “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.” He claimed that if the U.S. can use a warrant to seize information from other countries, then there is nothing preventing other countries from doing the same with U.S. information. In addition, Extreme Tech claims that “If the Supreme Court declares that the U.S. government can reach into cloud databases located on servers in other nations and pluck out any information, on any private citizen of another country, then the trust Europeans have in any U.S. provider of cloud or email services will drop to zero.”
The court also accepted other cases on Monday, two involving law enforcement as well, and another technology case involving cell phone information and wireless service providers. These decisions will be paramount to further criminal investigations involving technology use. Microsoft has repeatedly argued that Congress would be a better platform to argue this type of matter so that new legislation can be passed. For now however, the Supreme Court will decide what happens with the digital data.
A version of this article appeared in the Tuesday, October 24th print edition.
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