Justices would rather leave data dispute to Congress
WASHINGTON – The Supreme Court wrestled Tuesday with an international dispute over emails between the federal government and Microsoft that it wishes Congress would resolve.
A majority of justices appeared to sympathize with the government’s demand that the technology giant turn over emails tied to a drug trafficking investigation. The data are stored in a computer server in Ireland, protected by an outdated federal law that does not address global transactions.
The court could rule in Microsoft’s favor but urge Congress to update the law to help law enforcement.
The government’s position, argued by Deputy Solicitor General Michael Dreeben, is that issuing a warrant for emails from a U.S. service provider to investigate a U.S. crime is “classically domestic conduct.” He drew support from some of the court’s conservatives. “It seems to me that the government might have a strong position ... that the statute focuses on disclosure” rather than storage, Chief Justice John Roberts said during oral argument. “And disclosure takes place in Washington, not in Ireland.”
Microsoft’s position, defended by its attorney Joshua Rosenkranz, is that the Stored Communication Act of 1986 was intended to secure data. The emails “are stored in Ireland, and the government is asking us to go and fetch them from Ireland,” he said.
The court’s more liberal justices suggested the proper course might be to leave the statute alone for Congress to fix. “In, what was it, 1986, no one ever heard of clouds. This kind of storage didn’t exist,” Justice Ruth Bader Ginsburg said. “Wouldn’t it be wiser just to say, ‘Let’s leave things as they are’? If Congress wants to regulate in this brave new world, it should do it.”
Congress is trying to do that. Bipartisan legislation would enable the government to get data from overseas with a warrant but maintain consideration of other nations’ privacy laws.