Democracy Dies in Darkness

National Security

Supreme Court grapples with access to globalized data in U.S. investigations

By Ellen Nakashima

February 27, 2018 at 6:47 PM

Brad Smith, president of Microsoft, speaks during a news conference Tuesday following oral arguments at the Supreme Court. (Olivier Douliery/AFP/Getty Images)

The Supreme Court on Tuesday wrestled with a digital-age legal quandary: Can the U.S. government use a warrant to compel a U.S. company — in this case, Microsoft — to turn over data stored in a server overseas?

The case has far-reaching implications for law enforcement, which relies on access to emails and other data in criminal investigations, and the U.S. tech industry, which needs the trust of foreign governments to operate globally.

Several of the nine justices signaled support for the government’s position, while others questioned why the court should not wait for Congress to act. A bipartisan bill that the government and Microsoft agree would address underlying problems has been introduced, but its fate is unclear. Its lead sponsor, Sen. Orrin G. Hatch (R-Utah), sat in the front row at Tuesday’s hearing.

At issue is a drug dealer’s emails housed in a Microsoft data center in Ireland. The government has a warrant, but Microsoft argues that the law under which the warrant was obtained — the Stored Communications Act — does not reach beyond U.S. borders.

The government argues that because the emails would be turned over at the company’s headquarters in Redmond, Wash., there is no cross-border issue.

The justices struggled to apply the language of the 1986 law to the realities of modern-day cloud computing, where tech giants such as Microsoft store emails and other data in servers around the world.

Related: [U.S. battle over Microsoft emails could result in a ‘global free-for-all’]

“I mean, there are computers in Ireland, and something has to happen to those computers in order to get these emails back to the United States,” Justice Ruth Bader Ginsburg said.

Deputy Solicitor General Michael R. Dreeben argued that as long as Microsoft hands over the data in the United States, there is no cross-border grab. And he noted that no foreign government has said such retrieval is a violation of their law.

Justice Neil M. Gorsuch expressed skepticism with the government’s argument. “Why would that be the case . . . that we wouldn’t take cognizance of the fact that the information must be collected abroad and transmitted from abroad to the United States before it could then be disclosed? I mean, there’s a chain of activity that’s required here.”

At one point, Justice Sonia Sotomayor asked Microsoft’s attorney, E. Joshua Rosenkranz, how the information retrieval worked. He said a robot in Redmond does the work.

“I’m sorry,” she said. “I guess my imagination is running wild. How — how does — who tells the robot what to do, and what does the robot do?”

The robot, Rosenkranz said, spins a disk on a computer that looks for the email, reads the “ones and zeros,” packages them up and runs them through “hard wires” in Ireland and across the Atlantic, he said.

“This,” he said, “is a quintessentially extraterritorial act.”

Chief Justice John G. Roberts Jr. showed impatience with that argument. He told Rosenkranz that under his position, there is nothing that prevents Microsoft from storing U.S. emails “either in Canada or Mexico or anywhere else” and then telling customers, “Don’t worry — if the government wants to get access to your communications, they won’t be able to.”

Justice Samuel A. Alito Jr. pushed the example further, positing a U.S. citizen being investigated for crimes committed in the United States but with relevant emails being held in servers in several countries. “There is no way in which that information can be obtained except” through mutual legal-assistance treaties, a process that would take “many months, maybe years,” he said.

Justice Anthony M. Kennedy asked Rosenkranz: “Why should we have a binary choice between a focus on the location of the data and the location of the disclosure? Aren’t there some other factors — where the owner of the email lives, or where the service provider has its headquarters?”

Alito wanted to know how courts outside the U.S. Court of Appeals for the 2nd Circuit, which decided in Microsoft’s favor, were handling warrant requests. Dreeben said every district court outside of the 2nd Circuit that considered the issue has sided with the government, requiring that data be turned over regardless of where it is stored.

The case is not about privacy, Dreeben said. “The government has the gold standard of an instrument to address privacy interests here: a probable-cause-based warrant issued by a judge that describes with particularity what we want.’’

The judge that issued the original warrant, Magistrate Judge James Francis of the Southern District of New York, was in the audience, along with Irish and European Union officials.

After the arguments, Microsoft President Brad Smith addressed reporters, standing on the Supreme Court steps facing the U.S. Capitol. He noted that the case was filed in 2013 and that Tuesday’s arguments made clear the need for “21st-century laws to protect 21st-century technology.”

“There is only one institution in this country that can balance all of the careful nuances that need to be considered,” he said. “That institution is across the street. . . . It is the United States Congress.”


Ellen Nakashima is a national security reporter for The Washington Post. She covers cybersecurity, surveillance, counterterrorism and intelligence issues. She has also served as a Southeast Asia correspondent and covered the White House and Virginia state politics. She joined The Post in 1995.

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National Security

Supreme Court grapples with access to globalized data in U.S. investigations

By Ellen Nakashima

February 27, 2018 at 6:47 PM

Brad Smith, president of Microsoft, speaks during a news conference Tuesday following oral arguments at the Supreme Court. (Olivier Douliery/AFP/Getty Images)

The Supreme Court on Tuesday wrestled with a digital-age legal quandary: Can the U.S. government use a warrant to compel a U.S. company — in this case, Microsoft — to turn over data stored in a server overseas?

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