Supreme Court to consider major digital privacy case on Microsoft email storage

Casey Dawson
October 17, 2017

The U.S. government had sought the emails in a drug trafficking investigation.

Earlier this year Google lost a battle with the USA government and was ordered to hand over data stored overseas.

The case is United States v. Microsoft, 17-2.

The US Supreme Court will review a case concerning whether law enforcement can demand data stored overseas from a US-based email provider, according to a court order released Monday.

Microsoft says its policy at the time of the search warrant was to store email content in the data center nearest to the customer's self-declared country of residence, while keeping account information on USA servers. Microsoft challenged the warrant in 2014, arguing that prosecutors could not force it to hand over its customer's emails stored overseas.

Microsoft, federal authorities served Microsoft a warrant under the Stored Communications Act (also called a "disclosure warrant") for the emails of a foreign citizen that were stored on servers based in Ireland. In a concurring opinion, Judge Gerard Lynch said the question was a close one, and he urged Congress to revise the 1986 law, which he said was badly outdated. The full 2nd Circuit split on whether to rehear the case. An appeals court eventually ruled that Microsoft didn't have to supply the data to law enforcement. The panel's ruling, the department's brief said, "is causing immediate, grave and ongoing harm to public safety, national security and the enforcement of our laws".

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That deal basically adds hundreds of thousands of products to the service, which is exactly what Home Depot did, as well. The move is Target's latest attempt to attract more online shoppers as the holidays approach.

In response, Microsoft told the justices that it is up to Congress to revise the 1986 law and noted that both houses have recently held hearings to consider overhauls.

The Supreme Court will review whether USA law enforcement can use search warrants on emails outside the United States, in a case with massive implications for US-based megacorporations that serve countries across the world. If domestic disclosure warrants cannot be served on the foreign servers of USA companies, U.S. law enforcement can lean on treaties with the country that the servers are based in. And if the United States can use a warrant to take any data so long as it's held by an American company, doesn't that invite foreign governments to do the same thing?

In 2016, the Second Circuit Court of Appeals ruled in favor of Microsoft, asserting that a 1986 law, the Electronic Communications Privacy Act (ECPA), was not meant to grant law enforcement access to internationally-stored data.

The case is part of the broader clash between the technology industry and the federal government in the digital age. The court will hear arguments early next year and rule by June. American Express charges higher fees than Visa or MasterCard, meaning that merchants have good reason to prefer those other cards.

A coalition of 33 US states and Puerto Rico backed the Justice Department's appeal.

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