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Nov 30 2016   6:34PM GMT

Microsoft-DoJ Irish Data Case Headed for Supremes

Sharon Fisher Sharon Fisher Profile: Sharon Fisher


As you may recall, in July the Second Circuit Court of Appeals ruled that Microsoft did indeed not have to turn over data it owned that was stored in Ireland, in response to a Department of Justice (DoJ) search warrant. At the time, supporters were glad but said it was possible that the DoJ would appeal the decision, which would mean it would go to the Supreme Court.

That has indeed happened, as of October. Sort of.

Technically, the appeal is to the Second Circuit Court of Appeals, and asks for an en banc hearing. In other words, the DoJ wants to present the information to everybody, not just a subset of judges, in hopes that they can find enough judges to agree with them. In practice, though, the Second Circuit rarely grants en banc hearings, and the previous ruling was unanimous anyway, so even if they did grant it, the verdict would likely be the same, writes Jeff John Roberts in Fortune.

The upshot, then, is that the case is likely to go to the Supreme Court.

This all gets pretty down in the weeds. “In filing for the appeal to the US Supreme Court, the DoJ has claimed that the Court of Appeals misinterpreted the law as to when companies are obliged to disclose data stored on servers in foreign jurisdictions,” writes William Fry in Lexology. “The Court of Appeals ruled that in order to rebut the presumption against extra-territoriality of legislation, the statute under which the warrant was issued (the Stored Communications Act) would have to contain an ‘affirmative indication’ of an intention to apply outside the US. The court determined that enforcement of the warrant constituted an unlawful extra-territorial application of the Stored Communications Act.”

In other words, because the Stored Communications Act didn’t specifically mention international communications, it shouldn’t apply, the Second Circuit ruled.

What some in the U.S. would like to do is, instead of making law through the court system, make it through legislation that specifically addresses the issue of international data searches, Fry writes. And that is indeed the mechanism the appeals court suggested in July. The Congressional sponsors of the ICPA have also written to the DoJ asking it to work with them on fine-turning the ICPA legislation.

The ICPA is an updated version of the Electronic Communications Privacy Act, which dates from the 1980s, and includes such things as a free pass to search for data as long as it’s more than six months old, writes Eric Peters in InsideSources. “The International Communications Privacy Act has been written to deal with ECPA’s shortcomings — including rescinding the ‘180-day loophole’ for data mining without a warrant — and to tamp down the international kerfuffle over whose laws apply,” he writes, calling on the current lame-duck Congress to pass the bill before the next session.

There hasn’t been much indication of this happening, and it seems unlikely that the incoming Congress and Administration are likely to do much about protecting users from government data search.

If the case does end up in the Supreme Court, that’s a whole new kettle of fish. Recall that, at least for the time being, there are only eight justices. What that means is, if they have a tied decision, it would apply only to this single case, not as a precedent.  On the other hand, now that the election is over and the Senate is staying in Republican hands, it’s conceivable that there could be a ninth Justice by October, when the new Supreme Court year starts. In any event, Fortune’s Roberts believes that the Supreme Court would agree to hear the case because of its importance.

Another nuance is that different Internet companies have different policies for how they store their data, with some of them stashing it wherever’s convenient at the moment, anywhere in the world, and some of them choosing a location in or out of the country where the user resides. The Second Circuit’s decision makes it difficult for the DoJ to follow any procedure to get that data, writes Orin Kerr in the Washington Post. “ I didn’t expect that major domestic providers would respond to a ruling that they can’t be compelled to disclose foreign-stored emails pursuant to a warrant by refusing to disclose foreign-stored contents voluntarily when the target was domestic and the only reason that particular e-mail was foreign-stored at that instant was the fluid nature of the network’s architecture,” he writes.

In case this is all a blur to you, Microsoft reportedly had email messages from one of its customers stored on a server in Ireland. The DoJ wanted access to those email messages while pursuing an unspecified case, claiming that since the email messages were controlled by Microsoft, an American country, the DoJ had jurisdiction over them even though they were stored in Ireland.

This viewpoint was fraught for a number of reasons, as I described in July.

  • Because so many computer companies are American, it would mean an awful lot of data worldwide would be subject to access by the U.S. government.
  • Computer companies worried that worldwide customers would stop using them because they were afraid they’d get their data accessed.
  • Having the data subject to U.S. access could mean that the company – Microsoft in this case, but any company – could be violating data privacy laws in force at the second country. (For that reason, dozens of companies and civil liberties organizations – as well as the government of Ireland itself — filed amicus curiae briefs supporting Microsoft.)
  • If this precedent was set with the U.S., all the other countries in the world could declare that, in that case, all their data laws could apply to any company doing business in their countries, which could be an incredibly complicated, contradictory mess.

For its part, the DoJ  said that if users could stash their data overseas, it would make it hard for the DoJ to catch bad guys. While there were other methods that would give the U.S. government the ability to request the data stored in the foreign country, the DoJ said they were hard to do,

At this point, it’s up to the Second Circuit – and after that, the Supremes.

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