Justices to decide digital privacy case

In question, whether tech firms must release data not stored in U.S.

WASHINGTON — The Supreme Court on Monday agreed to decide whether federal prosecutors can force technology companies to turn over data stored outside the United States.

Disputes between leading technology companies and the Justice Department have become increasingly common, and the new case will give the Supreme Court an opportunity to weigh in on the clash between the demands of law enforcement and the companies’ desire to shield the information they collect to protect their customers’ privacy.

The case, United States v. Microsoft, No. 17-2, arose from a federal drug investigation. Prosecutors sought the emails of a suspect that were stored in a Microsoft data center in Dublin. They said they were entitled to the emails because Microsoft is based in the United States.

A federal magistrate judge in New York in 2013 granted the government’s request to issue a warrant for the data under a 1986 federal law, the Stored Communications Act. Microsoft challenged the warrant in 2014, arguing that prosecutors could not force it to hand over its customer’s emails stored abroad.

A three-judge panel of the 2nd U.S. Circuit Court of Appeals, in Manhattan, ruled that the warrant in the case could not be used to obtain evidence beyond the nation’s borders because the 1986 law did not apply extraterritorially. In a concurring opinion, Judge Gerard E. Lynch said the question was a close one, and he urged Congress to revise the 1986 law, which he said was badly outdated.

The government asked the full Second Circuit to rehear the case, but the court deadlocked by a 4-4 vote. In dissent, Judge José A. Cabranes wrote that the panel’s decision had restricted an investigative tool used thousands of times a year while failing to “serve any serious, legitimate privacy interest.”

In urging the Supreme Court to hear the case, the Justice Department said nothing should turn on Microsoft’s business decision to store data abroad that it “can access domestically with the click of a computer mouse.” The panel’s ruling, the department’s brief said, “is causing immediate, grave, and ongoing harm to public safety, national security, and the enforcement of our laws.”

“Hundreds if not thousands of investigations of crimes — ranging from terrorism, to child pornography, to fraud — are being or will be hampered by the government’s inability to obtain electronic evidence,” the brief said.

In response, Microsoft told the justices that it is up to Congress to revise the 1986 law and noted that both houses have recently held hearings to consider overhauls.

A ruling upholding the warrant, the company warned, would embolden foreign countries to seek the emails of Americans stored in the United States.

Microsoft added that the Justice Department’s position posed a threat to technology companies by requiring them to choose between complying with a warrant and disobeying foreign laws.

“These conflicts can place U.S. companies in the untenable position of being forced to violate foreign privacy laws to comply with U.S. warrants,” the company’s brief said. “And the growing privacy concerns of customers around the world mean that granting U.S. lawenforcement agencies that broad authority would hamstring U.S. companies’ ability to compete in the multibillion-dollar cloud computing industry.”