Justices wade into fight over email data stored overseas

The case, U.S v. Microsoft, deals with whether an email service provider, Microsoft, is required to turn over email data stored on a server located abroad when it is served with a warrant from the U.S. government.

In the run-up to oral arguments Tuesday, a bipartisan bill was introduced in both chambers of Congress, called the CLOUD Act, that would address many of the questions raised in the Microsoft case.

Sotomayor frequently brought up the CLOUD Act during oral arguments Tuesday, and said the bill offers protections.

“Why shouldn’t we leave status quo as it is and let Congress pass a bill in this new age?” Sotomayor asked.

She later questioned, after asking where the bill was in the legislative process, “Why shouldn’t we wait for that bill?”

The case deals with a 1986 law called the Stored Communications Act, under which the federal government obtained a warrant for email data belonging to a Microsoft account holder.

The account information was stored in the U.S., which Microsoft turned over, but the content of the email account was stored in a data center in Ireland.

Microsoft moved to quash the warrant, but a magistrate judge denied the company’s motion. A district court agreed with the magistrate judge’s ruling, but a panel of judges on the 2nd Circuit Court of Appeals sided with Microsoft, handing the tech community a victory.

Sotomayor said when Congress passed the Stored Communications Act more than 30 years ago, it likely was thinking about content that was stored in the U.S.

“Things have changed,” Sotomayor said, adding the court is being asked to imagine what Congress would have done today.

Ginsburg, too, noted that the issues in the case today did not exist in 1986. Then, she said, “no one heard” of the cloud.

“This type of search didn’t exist,” she said. “Wouldn’t it be wiser to let Congress regulate in this brave new world?”

One of the issues raised during the case is how international laws may be circumvented or ignored, as Microsoft warned, when the U.S. government seizes data stored in those countries.

In addressing that question, Justice Samuel Alito raised a hypothetical scenario in which the case involves a customer who is not Irish, as the citizenship of the customer involved in the Microsoft case is unknown. Alito said it is difficult to see what Ireland’s interests are if the country did not play a role in storing the information.

While Alito, too, noted that Congress is working to address the issues raised in the Microsoft case, he said something has to be done in the interim.

Chief Justice John Roberts said during Tuesday’s arguments the Stored Communications Act focuses specifically on the disclosure of information. In the case, he said, that disclosure would take place in Washington, where the Microsoft is headquartered.

He also said it’s “not the government’s fault” the data is stored overseas, and noted it’s likely the government doesn’t care.

Sotomayor elicited a chuckle from the audience during arguments when she discussed with Joshua Rosenkranz, who argued on behalf of Microsoft, the process by which the email data in Ireland is accessed by the company. Rosenkranz said the act does not require human intervention, but rather that from a robot. That statement prompted Sotomayor to note that her “imagination is running wild” and asked what, exactly, the robot does.

The Microsoft case has garnered interest from a number of parties, including the European Commission, the governments of the United Kingdom of Great Britain and Northern Ireland, several members of Congress, as well as the technology community and privacy groups, all of which filed briefs with the court.

Sen. Orrin Hatch, R-Utah, attended Tuesday’s oral arguments, and he, along with Sen. Chris Coons, D-Del., and Reps. Doug Collins, R-Ga., Darrell Issa, R-Calif., and Hakeem Jeffries, D-N.Y., filed an amicus brief with the court last month.

Hatch introduced the CLOUD Act earlier this month.