On Monday, the Supreme Court granted the Department of Justice's petition for certiorari in United States v. Microsoft Corp., a case in which the government attempted to force Microsoft to hand over the emails of one of its users that were stored on one of the company's servers in Ireland. This case highlights how murky Fourth Amendment protections can be in the age of the Internet.
Fortunately, a bill is currently being considered by Congress that balances citizens' privacy rights and law enforcement's interest in obtaining evidence for criminal investigations, called the International Communication Privacy Act.
In 2013, federal law enforcement obtained a search warrant to seize the contents of a Microsoft customer's email account as part of a narcotics investigation, pursuant to the Stored Communications Act. Microsoft complied up until the point where the government requested data that was stored wholly overseas. Proceeding under an interpretation of the Electronic Communications Privacy Act, Microsoft was ordered to hand over the overseas data, which they subsequently refused to obey, and were held in contempt.
The ECPA was passed in 1986 before the web was truly "worldwide" and is thus hopelessly outdated when applied to the modern Internet. Most crucially, it allows law enforcement to take possession of any emails or messages without a warrant, so long as they are more than 180 days old.
Generally, exceptions to the Fourth Amendment requirement for a warrant are based on the idea that there is no "reasonable expectation of privacy," which is why the government doesn't need a warrant to search garbage on the curb, for example. In this context, the mere fact that 180 days have passed is an arbitrary expiration date given one's expectation of privacy in an email.
The government is pleading that a ruling for Microsoft would put a "substantial" burden on law enforcement, as they would be required to go through the mutual legal assistance treaty process whenever they wanted to conduct searches abroad, notifying other governments and coming to an information exchange agreement.
Even if the Supreme Court comes down on the right side and rules for Microsoft, the government will still be applying a pre-Internet statute to an Internet that continues to evolve. Just as the First Amendment doesn't only cover the printing press, Americans can't let our privacy on the Internet be trampled just because the government thinks it would be easier than following the law. Congress needs to update the ECPA, ensuring our digital communications are afforded the protection guaranteed by the Fourth Amendment.
There have been efforts for such updates for some time now, including the International Communication Privacy Act, which takes into account the existence of cloud computing and other modern technologies. According to the text of the bill, the ICPA would create "a legal framework that clarifies the ability of law enforcement to obtain electronic communication of U.S. citizens, no matter where the person or the communications are located." It also clarifies warrant requirements for seizures of information, helping to bring the law of electronic privacy in compliance with the Fourth Amendment.
The ICPA would not hamper the ability of officials to investigate international crimes. Rather, it would allow law enforcement to obtain communications from foreign nationals in a manner consistent with both American and international law.
Any breach of privacy, Internet or physical, needs to be taken seriously. The egregiousness of the situation makes it obvious why the National Law Review has named this problem the top privacy issue of 2017. With the ICPA garnering bipartisan support, and the Microsoft case making headlines, we should be hopeful that the 1986 ECPA might finally be taken offline.
Matthew Larosiere is a contributor to the Washington Examiner's Beltway Confidential blog. He holds a J.D. and LL.M. in taxation from the University of Alabama School of law and is pending admission to practice law in Florida. He is also a Young Voices advocate.
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