Latest in United States v. Microsoft
The Supreme Court heard oral argument today in Microsoft’s ongoing dispute with the U.S. government over Irish-held data. The lead-up to the case is summarized here and my recap of oral argument is here.
The Supreme Court heard oral argument Tuesday morning in United States v. Microsoft Corp.—a case that readers will by now be familiar with. (See a fantastic summary of Lawfare coverage here).
In our interconnected world, the electronic data that we create may be stored far away from us, without regard for national boundaries. If our data become relevant to legitimate law enforcement investigations, the borderless nature of digital data can create obstacles for government investigators and the tech companies who receive government requests for their customers’ electronic data. Yet, efforts to overcome these barriers must address the tension between the needs of law enforcement and the rights of individuals.
Robert Mueller’s indictment of Russians suspected of interfering in the 2016 presidential elections is remarkable for a number of reasons. It is remarkable because it suggests that Mueller’s team was able to identify the organizational structure of a group of Russians who were acting in a manner deliberately designed to appear organic and not coordinated.
The issue of law enforcement access to data held abroad is in the news again with the Supreme Court set to hear oral argument in United States v. Microsoft on Feb. 27, and Congress considering the recently-announced CLOUD Act.
Lawfare readers are familiar with the perennial regulatory challenge of determining which country’s law enforcement agents ought to be able to access internet data stored in the cloud. This is a considerable problem in two distinct contexts: (1) American law enforcement officers seeking access to data held abroad and (2) law enforcement officers around the world seeking access to data held by American firms.
The Supreme Court recently agreed to hear an important electronic privacy case, United States v. Microsoft, on whether Microsoft has to comply with a United States search warrant for email stored by Microsoft on a server in Ireland. I’m going to explain in this post why I think the case comes to the court with a major problem. Specifically, Microsoft brought its challenge under the wrong statute.