Supreme Court Agrees To Hear Case Involving US Demands For Emails Stored Overseas

from the spending-locally,-thinking-globally dept

The Supreme Court has granted the government's request for review of Second Circuit Appeals Court's decision finding Microsoft did not have to turn over communications stored overseas in response to US-issued warrants.

This is a pretty quick turnaround as far as tech issues go. The Supreme Court is finally willing to take a look at the privacy expectation of third party phone records (specifically: historical cell site location info), following years of courtroom discussion... which follow years of Third Party Doctrine expansion.

That being said, a resolving of sorts is needed to clarify the reach of US law enforcement going forward. The Second Circuit twice shut down the DOJ's requests to extend its reach to offshore servers. Even as the Microsoft case was still being litigated, other courts were coming to contrary decisions about data stored overseas.

The target in these cases was Google. Google's data-handling processes contributed to the adverse rulings. Unlike Microsoft -- which clearly delineated foreign data storage -- data and communications handled by Google flow through its servers constantly. Nothing truly resides anywhere, a fact the DOJ pressed in its arguments and the one two judges seized on while denying Google's warrant challenges.

The Supreme Court's ruling will be needed to tie these disparate decisions up into a cohesive whole.

Or not. Rule 41 changes that went into effect at the beginning of this year remove a lot of jurisdictional limitations on search warrants. On top of that, the DOJ has been angling for expanded overseas powers, pushing Congress towards amending the Stored Communications Act.

This, of course, is what the Second Circuit Appeals Court told the government to do: take it up with legislators. But if litigation is a slow process, legislation can be just as time-consuming. The DOJ wants permission now and the Supreme Court gives it the best chance of being allowed to grab communications stored outside of the United States using a warrant signed by a magistrate judge anywhere in the US.

In the meantime, the DOJ will continue to pursue amendments to the Stored Communications Act -- a law it's already taken advantage of, thanks to it being outdated almost as soon as it was implemented. Further rewriting of the law in the DOJ's favor would allow US law enforcement to become the world's police, serving warrants in the US to gather documents stored around the globe.

While this may seem like a boon to law enforcement, it should be approached with extreme caution. If this becomes law (rather than just a precedential court decision) the US government should expect plenty of reciprocal demands from other countries. This would include countries with far worse human rights records and long lists of criminal acts not recognized in the US (insulting the king, anyone?). The US won't be able to take a moral or statutory stand against demands for US-stored communications that may be wielded as weapons of censorship or persecution against citizens in foreign countries. Whoever ends up handing down the final answer -- the Supreme Court or Congress -- should keep these implications in mind.

Filed Under: domestic, ecpa, emails, foreign, sca, scotus, stored communications act, subpoena, supreme court, warrants
Companies: microsoft

Reader Comments

Subscribe: RSS

View by: Time | Thread

  1. icon
    orbitalinsertion (profile), 18 Oct 2017 @ 5:36pm

    Re: Should probably depend on the nationality and residence of the target

    It doesn't make much sense that I can help to insulate my affairs from law enforcement investigation by telling Amazon, or whomever, to store my data in another country, even though both Amazon and myself are US entities.

    You can do it with your money, so why not?

    What I actually find problematic is multiple sets of rules, period. Why should foreign anything be an easier target? Why should the general human rights enshrined in the Constitution not apply to any human being? (We keep losing them in the States, too, so eventually we may all be equal if not free.)

    If you have a valid (truly valid, not gaming, not enhanced by ridiculous new laws or "interpretations", not because you can find the right judge to sign anything) warrant for a particular thing, then sure why not make someone subject to US law (i.e., legal punishment) cough it up?

    The real problem is the expansive power to subpoena large swathes of whatever pretty much on a whim, keep it forever, and not discard irrelevant information regarding unrelated parties or things unrelated to any supposed investigation.

Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here

Subscribe to the Techdirt Daily newsletter

Comment Options:

  • Use markdown. Use plain text.
  • Remember name/email/url (set a cookie)

Follow Techdirt
Special Affiliate Offer

Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Report this ad  |  Hide Techdirt ads
Recent Stories
Report this ad  |  Hide Techdirt ads

This site, like most other sites on the web, uses cookies. For more information, see our privacy policy. Got it

Email This

This feature is only available to registered users. Register or sign in to use it.