The Recorder

October 16, 2017

By Tony Mauro, The National Law journal 

 

 

U.S. Supreme Court building.

The NLJ/ Diego M

 

 

Updated 10/16/17, 11:05 a.m.

 

A long-running dispute between Microsoft and the Justice Department over providing the government with certain customer emails in criminal investigations will be refereed by the U.S. Supreme Court.

 

Without comment, the justices agreed to hear arguments in United States v. Microsoft, responding to the government’s dire assertion that a lower court ruling siding with Microsoft is causing “immediate, grave, and ongoing harm to public safety, national security, and the enforcement of our laws.”

 

For its part, Microsoft counters that “the government is in the wrong forum,” asserting that it is up to Congress, not the courts, to expand existing law to require email providers to turn over customer content stored overseas. Veteran high court advocate and Orrick, Herrington & Sutcliffe partner E. Joshua Rosenkranz represents Microsoft in the case.

 

In a blog post Monday, Microsoft Chief Legal Officer Brad Smith said the company would continue to press its case that the Electronic Communications Privacy Act "was never intended to reach within other countries' borders.

 

"[A]s we have said from the beginning of this litigation, there's a broader dimension to this issue as well. … If U.S. law enforcement can obtain the emails of foreigners stored outside the United States, what's to stop the government of another country from getting your emails even though they are located in the United States," Smith wrote.

 

The case originated in December 2013 when the Justice Department obtained a warrant in the Southern District of New York for emails of an as-yet-unnamed person based on probable cause that the account was being used in narcotics trafficking. Microsoft agreed to provide noncontent information about the account. But the company refused to turn over the actual emails, which had been “migrated” to one of its data centers in Ireland, citing “impermissible extraterritorial application” of the Stored Communications Act.

 

The U.S. Court of Appeals for the Second Circuit agreed with Microsoft, triggering a petition for an en banc hearing that was turned down by a 4-4 Second Circuit vote. Judge Jose Cabranes, one of the dissenters, wrote that the Second Circuit ruling “has indisputably, and severely, restricted an essential investigative tool used thousands of times a year in important criminal investigations around the country.” He also said the rulings “created a roadmap” for criminal suspects to shield their emails.

 

In opposing Supreme Court review, Microsoft said that in addition to the extraterritoriality issue, that a ruling in favor of the Justice Department would “adversely affect U.S. technology companies” by putting them in “the untenable position of being forced to violate foreign privacy laws to comply with U.S. warrants.” It would also, according to the brief, “hamstring U.S. companies’ ability to compete in the multi-billion dollar cloud-computing industry.” Rosenkranz added, “Only Congress can balance these interests against those of law enforcement.”

 

 

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