U.S., Microsoft fight over access to digital data stored overseas reaches Supreme Court

WASHINGTON — A digital privacy dispute between the federal government and Microsoft is forcing the Supreme Court once again to match old laws to new technology.

On tap at the court Tuesday is the Trump administration's effort to obtain emails relevant to a drug-trafficking case. The statute governing access was enacted in 1986, before the World Wide Web existed. Today, Microsoft stores data on some 1 million servers in 40 countries.

The emails in question reside in Dublin — outside the reach of the Stored Communications Act, Microsoft says. Ever since a federal appeals court in New York sided with the computer software giant in 2016, Google and other technology companies have blocked access to data stored overseas, federal and state officials say.

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The high court's decision to hear the government's appeal indicates a number of justices are concerned about that development. Allowing the location of data to determine its availability to police "makes little sense for a whole host of reasons," says Jennifer Daskal, an associate professor at American University Washington College of Law.

But Microsoft and a wide-ranging group of supporters on both sides of the Atlantic Ocean say that if the United States wins access to the data, other countries — allies and adversaries alike — could demand electronic information stored here.

"It would instigate a global free-for-all, inviting foreign governments to reciprocate by unilaterally seizing U.S. citizens’ private correspondence," Microsoft argues in court papers. Its president and chief legal officer, Brad Smith, warned Thursday of "international tension and chaos."

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The dilemma puts the Supreme Court in an increasingly familiar position. Just three months ago, the question was whether police can track criminal suspects by monitoring the location of their cellphones — another technological innovation that wasn't around in 1986.

Data for crime-solving

The Justice Department's argument is simple: The U.S. government has a warrant for information from a U.S. service provider about a U.S. crime. Nobody has to go to Ireland to get it.

"Microsoft’s employees could prepare that disclosure without leaving their desks in the United States," the government says in court papers.

On the other hand, Solicitor General Noel Francisco argues, Microsoft's position would stifle criminal investigations.

"A provider could move all information about U.S. subscribers beyond the reach of U.S. law enforcement simply by building its servers outside the United States," the brief says.

The appeals court ruling "puts all the power in the hands of the providers,” says Vermont Solicitor General Benjamin Battles, whose office led a group of 35 states and Puerto Rico backing the federal government.

'We would be outraged'

Microsoft pushes back on the argument that the server's location in Ireland is merely incidental. In this case, the company says, the government is exercising a search warrant in a foreign country.

“If another country did this to us, we would be outraged,” says appellate lawyer Joshua Rosenkranz, who will argue the company's case in court.

The list of groups backing Microsoft is long, including many European government officials, business trade associations and privacy groups. They warn of a data war in which other countries could seek information stored in the U.S.

Andrew Pincus, an appellate lawyer and former top Commerce Department official, wrote in SCOTUSblog that the government's position could "help (Russian President) Vladimir Putin access information stored in the United States."

He says that it also could break up the $250 billion cloud-computing industry because foreign companies might avoid U.S. service providers that now dominate the market.

Given the strong arguments on both sides, the justices may seek a compromise solution in which the government gains access to data stored overseas, but lower courts are urged to consider the privacy laws and interests of other nations.