Can The Feds Obtain Emails Stored Abroad? Supreme Court Struggles Over Email Privacy

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Kevin Daley Supreme Court correspondent
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The U.S. Supreme Court struggled Tuesday as to whether internet service providers must disclose electronic communications stored abroad to the federal government.

Several justices appeared interested in underlying issues the case raises, while others urged Congress to update a federal law adopted three decades ago regulating the storage and disclosure of electronic communications.

The case arose in 2013 when the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) sought a warrant under a provision of the Stored Communications Act (SCA) for emails relating to an ongoing narcotics trafficking operation. Microsoft declined to comply with the warrant, since the emails are stored at a data center in Ireland. The company argues that cooperating with the warrant would involve applying U.S. law in a foreign country.

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As a general rule, federal law applies only in the United States, unless Congress explicitly says otherwise.

The government counters that any conduct relating to the warrant takes place within the U.S. — the warrant is executed inside U.S. borders, and the emails are surrendered to the government at a U.S. facility.

“Here, by contrast, the U.S. government has required a U.S. service provider to disclose in the United States information that a neutral magistrate has found relates to a U.S. crime,” the government wrote in one of its filings. “Indeed, Microsoft’s employees could prepare that disclosure without leaving their desks in the United States.”

Chief Justice John Roberts appeared to agree. He told Joshua Rosenkranz, the lawyer for Microsoft, that under their theory, the government could not access an email he sends from his office to a colleague in the same building, simply because the message could be stored on a server in Canada.

The justices also wondered how Microsoft transferred data from foreign servers. The questions suggested that affecting the transfer from an American office via a software program might not inculpate foreign interests. The analysis would be different, however, if a person needed to facilitate the relocation from the Irish data center.

“Obviously, something happens in Ireland on the computer,” Justice Anthony Kennedy said. “But does some person have to be there?”

“A human being doesn’t have to do it,” Rosenkranz replied. “It is a robot. And if you sent a robot into a foreign land to seize evidence, it would certainly implicate foreign interests.”

“My imagination is running wild,” Justice Sonia Sotomayor said, to laughter.

There was also a complicated foreign policy issue to consider. A number of European interest and regulatory groups told the high court in amicus (or “friend-of-the-court”) briefs that the Irish data center was subject to European Union privacy protections. Absent a treaty, the data should be sought through a diplomatic procedure called a mutual legal assistance treaty.

Several justices suggested that Congress should resolve the controversy, since it could not have envisioned the breadth of the current network when the SCA was first adopted in 1986. Neither email nor the concept of foreign data storage existed at that time. The best solution, they say, might be to allow Congress to update the statute.

“Wouldn’t it be wiser to say let’s ‘leave things as they are?'” Justice Ruth Bader Ginsburg asked. “If Congress wants to regulate in this brave new world it should do it.”

Sotomayor pointed out that lawmakers in both houses of Congress have introduced a bill called the CLOUD Act addressing many of the substantive questions before the Court in this case.

GOP Sen. Orrin Hatch, who introduced the legislation, was present for Tuesday’s arguments.

A decision in the case, U.S. v. Microsoft, is expected by June.

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