Judges back US government in Microsoft battle over offshore e-mails
‘Microsoft could tell customers: Don’t worry if the government wants to get access to your communications; they won’t be able to’
Manhattan — Several US Supreme Court justices expressed support for the government on Tuesday in its fight with Microsoft over whether a decades-old law lets government investigators get digital information stored on overseas servers.
The Trump administration is challenging a lower-court ruling that barred federal law enforcement officials from using the 1986 Stored Communications Act to get a suspected drug trafficker’s e-mails, which were kept on a Microsoft server in Ireland.
During an hour-long argument, the justices struggled to decide how a law older than the World Wide Web affects law enforcement in the era of cloud computing.
Chief Justice John Roberts suggested Microsoft’s argument would put out of the government’s reach an e-mail sent from the Supreme Court building to someone just a block away, if the company had chosen to store it on a server outside the US.
Nothing would keep Microsoft "from storing US communications, every one of them, either in Canada or Mexico or anywhere else, and then telling their customers: Don’t worry if the government wants to get access to your communications; they won’t be able to," without getting help from a from foreign government, Roberts told Microsoft lawyer Joshua Rosenkranz.
Justice Samuel Alito expressed concern that law enforcement would be hobbled without the ability to demand offshore e-mails from companies located in the US.
He asked what happens when a US citizen is being investigated for crimes in the US, and the government has shown it has an "urgent need" for "evidence of this crime in e-mails that are in the possession of an American internet service provider" that has stored the e-mails overseas.
Rosenkranz said US prosecutors would ask for help from that country’s government. "If it’s urgent for the government, the other governments respond urgently," he said.
Microsoft, which is supported in the case by companies including Google, Apple and Amazon.com, stores e-mail content at more than 100 data centres in more than 40 countries. The company says it uses that many sites for the sake of speed, putting users as close as possible to their data.
Proposal in Congress
The government says that requesting assistance from other countries in gathering evidence can be a slow and difficult process. Fewer than half of the world’s countries have treaties with the US for providing such help.
Several of the Democratic-nominated justices expressed frustration with applying the decades-old law to the era of cloud computing, suggesting they might prefer to wait for Congress to act on a pending bipartisan proposal to update the law.
Justice Sonia Sotomayor suggested to Deputy US solicitor-general Michael Dreeben that the government’s interpretation of the law would raise conflicts with the data privacy laws of other countries.
"Why shouldn’t we leave the status quo as it is and let Congress pass a bill in this new age that addresses the potential problems that your reading would create?" Sotomayor asked, following up on a similar question from Justice Ruth Bader Ginsburg.
‘Break the cloud’
Rosenkranz, the Microsoft lawyer, told the justices that a ruling could damage the standing of the US as the world leader in the multibillion-dollar cloud computing business.
"If you try to tinker with this without the tools that only Congress has, you are as likely to break the cloud as you are to fix it," he said.
Attending Tuesday’s argument was Republican Senator Orrin Hatch of Utah, a co-sponsor of the bipartisan measure, which would let the US make formal agreements with other countries for cross-border requests for digital evidence.
After the argument, Hatch said: "It’s no surprise that throughout this morning’s oral argument, justices continually referred to the importance of action from Congress."