In a rare instance of the Supreme Court weighing in on technology issues, the Justices heard oral arguments in United States v. Microsoft Tuesday over issues related to digital privacy, the cloud, and enforcement of U.S. law abroad.
The case in question surrounds a legal dispute that started in 2013. Federal investigators working on a drug case attempted to obtain email account information of a Microsoft customer. The investigators received a warrant, and when they served it, Microsoft revealed that some of the customer’s data were stored in the United States, but the data that investigators actually needed was being stored overseas in an Irish data center.
Even though Microsoft handed over the data kept in the United States, it pushed back on the request for the information stored in Dublin, petitioning the courts to deny the investigators access to data stored overseas.
Microsoft’s argument: The original law passed by Congress, the Stored Communications Act of 1986, didn’t apply to data stored in other countries. Microsoft’s position was that it couldn’t turn over the information because it still had an obligation to protect its customers’ data and the warrant didn’t apply to anything stored outside of the United States.
A New Type of Internet
The cloud is a very different concept from what legislators envisioned in 1986. The Macintosh was about two years old, and the Internet existed as a network of networks, connecting universities and government institutions with one-another along with the ARPANET. There were less than 20,000 hosts online at the time, and the World Wide Web was still five years away from being introduced to the public.
Most of the general public wouldn’t even experience the Internet for nearly a decade. In fact, it wasn’t until 1993, when the number of websites online reached 600, that the White House and United Nations would become part of the online world.
The Internet today is practically without borders. The cloud exists across the world, with data stored in data centers and on systems in virtually every corner of the planet.
Supreme Court Justices Hear Arguments
The data requested by investigators may be accessible with a touch of a button from anywhere, but their physical location is what Microsoft argues makes that information unobtainable using the current statute.
According to Microsoft, it’s Irish law, not that of the United States, that rules over the data stored in Dublin.
The representatives of the United States see this as a different story. While they agree that the Stored Communications Act doesn’t hold weight in a foreign country, they argued that Microsoft can access that data without performing any actions in Ireland, making the physical location of the information irrelevant.
Reports from the Supreme Court indicate that Justices Ginsburg and Sotomayor indicated that they were inclined to leave this issue to Congress to solve with updated legislation that addresses issues raised by a new generation of technology.
Meanwhile, Justices Alito and Kennedy are reported to have appeared to lean towards ruling in favor of the government’s position.
A final ruling on this case is not expected until June. In the meantime, all eyes are on legislators to pass a bill that addresses digital information in the era of the cloud. One such bill is S.2383, the CLOUD Act.
The CLOUD Act is legislation that directly addresses law enforcement’s ability to access data stored in other countries. It’s an amendment to the Stored Communications Act that adds the following clarification:
A provider of electronic communication service or remote computing service shall comply with the obligations of this chapter to preserve, backup, or disclose the contents of a wire or electronic communication and any record or other information pertaining to a customer or subscriber within such provider’s possession, custody, or control, regardless of whether such communication, record, or other information is located within or outside of the United States.
The passing of this bill and eventual signing into law by the President would create a legal safeguard allowing law enforcement agencies the ability to obtain data like that being discussed at the Supreme Court.
It also provides some safeguards for companies that believe the data in question belongs to someone that doesn’t live in the United States. It also enables the company to petition the court in the event that abiding by the request would put the company in legal jeopardy within the foreign territory.
If the bill passes into law, the Supreme Court case between Microsoft and the United States becomes a moot point. Otherwise, the Supreme Court will have to decide whether or not a law written 30 years ago has bearing on the Internet of today.