The House approved a massive $1.3 trillion spending bill Thursday that includes language that’s likely to render moot a Supreme Court case involving the government’s search and seizure of data stored on overseas.
The lower chamber passed the 2,232-page bill hours after it was introduced Wednesday night, and it is expected to pass the Senate by Saturday.
Buried on page 2,201 of the 2,232-page bill is the Clarifying Lawful Overseas Use of Data Act, or the CLOUD Act. Spearheaded by Sen. Orrin Hatch, R-Utah, and Rep. Doug Collins, R-Ga., the legislation addresses many of the issues raised in the case U.S. v. Microsoft., which the Supreme Court heard last month.
The CLOUD Act would allow the U.S. government to seize email data stored by communications providers on servers overseas, if it has a warrant. The proposal also creates a mechanism under which communications providers can challenge the government’s data requests in court if it would force the company to run afoul of another country’s laws.
The bipartisan bill has both the backing of the Trump administration and Microsoft, the two parties at odds in the case currently before the Supreme Court.
The court case deals with the Stored Communications Act, under which the federal government obtained a warrant for email data belonging to a Microsoft account holder who was part of a drug trafficking investigation.
The account information, which Microsoft turned over, was stored in the United States. But the content of the email account was stored in a data center Microsoft operates in Ireland, and Microsoft refused to hand over the email data.
Lower courts split on whether Microsoft should have to hand over the email, and the decision was left to the Supreme Court. However, justices indicated during oral arguments in the case last month they were aware Congress might act.
“If Congress takes a look at this, realizing that much time and innovation has occurred since 1986, it can write a statute that takes account of various interests, and it isn’t just all or nothing,” Justice Ruth Bader Ginsburg said during arguments. “So, wouldn’t it be wiser to just say let’s leave things as they are? If Congress wants to regulate in this brave new world, it should do it?”
Justice Sonia Sotomayor also urged Congress to take action.
“I understand there’s a bill that’s being proposed by bipartisan senators that would give you most of what you want, but with great protections against foreign conflicts,” she told Michael Dreeben, who argued the case on behalf of the federal government. “There are limitations involving records that are stored abroad. Why shouldn’t we leave the status quo as it is and let Congress pass a bill in this new age?”
The inclusion of the CLOUD Act in the omnibus spending bill was praised by both Microsoft and Hatch on Wednesday. Its passage into law over the next few days will likely end the case at the Supreme Court.
“The CLOUD Act will create a clear, balanced framework for law enforcement to access data stored in other countries while at the same time encouraging our allies to strengthen their domestic privacy laws,” Hatch said in a statement.
Brad Smith, Microsoft’s president and chief legal officer, noted the legislation has support from a diverse coalition that include the White House, Justice Department, National Association of Attorneys General and technology companies.
“Today is an important day for privacy rights around the world, for international relations, and for building trust in the technology we all rely on every day,” Smith said. “The inclusion of the CLOUD Act in the omnibus funding bill negotiated by congressional leaders of both parties is a critical step forward in resolving an issue that has been subject of litigation for over four years.”
