By John K. Higgins
Mar. 13, 2018 10:29 am PT
Until extends the long arm of law enforcement in the United States when government agencies seek to obtain information electronically?
The US Supreme Court recently addressed this issue in an intriguing session involving terms that were close to metaphysics applied to global electronic connectivity, law, and the importance of national boundaries.
Discussion took place during last month’s pleadings in US Microsoft a lawsuit arising from Microsoft’s refusal to comply with a federal court ruling compelling to disclose information based on a computer located outside the United States – in this case Ireland. The United States Department of Justice has sought the order as part of its investigation into a criminal narcotics case.
Microsoft has essentially claimed that by returning data held outside of the United States, the company would run the legal risk of violating the privacy laws of another country. even if the content would be useful to US authorities to catch criminals. Microsoft also said it feared a major business risk: the potential loss of a large number of customers who would no longer trust him to protect the privacy of customers.
“If customers around the world believe that the US government has the power to unilaterally access data centers operated by US companies, without reference or notification to their own government, they will not trust this technology “Legal counsel Brad Smith in an online article published just before the Supreme Court session.
The importance of the case for the computer industry has been reflected by the submission of memoirs amicus curiae to Microsoft’s support by large companies such as Google, Cisco and Verizon, as well as several professional associations.
Microsoft Challenges Application
The case boils down to a few basic affirmations. For Microsoft to prevail, the company must prove that the action sought through the court order must necessarily take place in the Irish institution where the laws on the protection of life The company must simultaneously prove that the law governing the United States – the Stored Communications Act – was not intended by Congress to apply to the US. outside the United States under a clumsy legal concept called “extraterritoriality”.
In the opposition, the Department of Justice accused Microsoft of peddling a false allegation on an action required outside the United States. The information could easily be obtained with a few keystrokes from a US site electronically connected to the Irish facility. DoJ.
Even if the court had to buy the argument from the foreign site, the SCA would still be enforceable abroad, argued the Justice Department.
Microsoft and advocacy groups such as the Electronic Privacy Information Center (EPIC) have described the case as a major privacy challenge. However, the actual legal arguments before the Supreme Court deal less with the issues of confidentiality than with the applicability of the SCA.
“It’s simply not a question of whether US authorities have probable reasons to request the contents of this email account,” said Andrew Woods, assistant professor at the
University of Kentucky College of Law.
Instead, the case concerns the authorities of which country should be able to compel this account information, “he told the E-Commerce Times.
With this legal step, the judges of the Supreme Court entered the fray. While it is risky to predict a Supreme Court decision based on oral argument, it is notable that the geographic question figured prominently in the discussions.
Location, location, location!
Several judges have continued the Department of Justice’s contention that the information required by the court order could be disclosed simply by accessing the Irish facility from a court of law. computer in the United States.
“This is not an international problem here, it’s a mirage that Microsoft is seeking to create,” said Michael Dreeben, Deputy Solicitor General of the United States on behalf of the DoJ at the ### 39, a dialogue with Judge Sonia Sotomayor.
Shooting on the US storage unit eliminates the involvement of another country and meets the requirement of “disclosure” of the law since the activity would occur in the United States, according to the DoJ.
Chief Justice John Roberts emphasized this point, noting that the applicable section of the SCA is entitled “Mandatory Disclosure of Client Submissions or Records”, and noting that Congress intentionally inserted the title.
“It seems to me that the government could have a strong position out there that the law is focused on disclosure and disclosure is taking place at [the state of] Washington, not Ireland,” Roberts said, referring to the headquarters from Microsoft. ]
Associate Judge Samuel Alito has been immersed in metaphysics: “I think the point is when we talk about this information, which … yes, it exists physically on one or more computers somewhere, but it is n & # There is no Presence anywhere in the sense that a physical object is present somewhere, and Internet Service Providers can place it wherever it wants and move it as it sees fit, the very idea of territoriality is tense. “
Microsoft’s lawyer claimed that a physical element was at stake.
“I would not agree with that, Judge Alito,” said Joshua Rosenkranz, associate at
Orrick, Herrington and Sutcliffe. “First, I do not agree with the premise: these emails have a physical presence, they are on a hard drive, are they mobile, but the letters are also mobile, and they are protected by foreign laws who, in the way, are really very robust. “
Criminal proceedings related to the case
Just to cover all the bases, the judges discussed the criminal law procedure surrounding the appointment of warrants and assignments related to the case. They also discussed the enforceability of the SCA in an international context, addressing the use of agreements between countries.
Microsoft and the DoJ agreed that the SCA was “silent” on the international application, with Microsoft claiming that the lack of specific authority meant that the law could not be relied on for locating in Ireland.
The DoJ argued the opposite: because the law did not specifically prohibit its use abroad, the department was correct in citing the SCA to obtain the information. desired.
The scope of the court’s final decision could theoretically include a broad review of the powers of the SCA. However, this is not likely, according to Jennifer Daskal, a law professor at
American University Washington College of Law.
“This case mainly concerns the rules governing data access to law enforcement under a warrant,” she told the E-Commerce Times. “I imagine that the Court will stick to this issue, which is quite important in itself, without necessarily addressing other parts of the SCA.”
Some judges have wondered aloud whether a recently enacted law designed to protect privacy without seriously frustrating law enforcement on a reciprocal basis between the United States and others country, could be the solution.
President Donald Trump and British Prime Minister Theresa May said the issue was important enough for them to discuss telephone legislation last month.
The DoJ urged the court to make a decision, noting that legislative initiatives are often uncertain and arguing that the court was responsible for dealing with the matter before it. Usually, the court would render a decision before the end of the relevant period – in this case by June 2018.
The SCA needs an update because of advances in technology, Daskal said. Current Senate legislation, entitled “Clarifying the Legitimate Use of Data Abroad,” or CLOUD Act, “recognizes this reality,” she wrote in an online article for Harvard Law Review
The act “separates access to data from the question of where the data is held,” Daskal emphasized
“Fingers crossed as Congress acts quickly, complicating the Supreme Court case,” she added. “Otherwise, the Court should rule in the same way: it should recognize that the location of data should not dictate access, as Judge Alito seemed to assert, while emphasizing the importance of the courtesy if and when these requests create data, a conflict of laws. “
Such a decision would reduce international discord, Daskal said, while establishing “the kind of precedent the US would demand and should demand when foreign governments look for data held by the United States.”
John K. Higgins has been a journalist with the ECT News Network since 2009. His main areas of interest are US government technology issues such as IT contracts, cybersecurity, privacy, cloud technology, big data and e-commerce regulation. As a freelance journalist and professional writer, he has written for many publications, including
The Body Report and Business Week .