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Justice Department asks Supreme Court to moot Microsoft email case, citing new law

The Supreme Court is seen at sunset Oct. 10.
The Supreme Court is seen at sunset Oct. 10. (J. Scott Applewhite/AP)

Now that Congress has made clear that a U.S. search warrant covers emails stored overseas, the Justice Department on Friday asked the Supreme Court to moot a case involving a data demand issued to Microsoft for a drug-trafficking suspect’s emails held in Ireland.

The case, argued in February, centered on whether a U.S. tech firm must comply with a court order to produce emails even if they are stored abroad — in this instance, in a Dublin server.

Supreme Court grapples with cross-border data issue in Microsoft case

The litigation arose out of a 1986 law, the Stored Communications Act, passed long before email became a common way to communicate and before American firms began storing massive amounts of data outside the United States.

During oral arguments, some of the justices asked why they shouldn’t just wait for Congress to resolve the question. Justice Sonia Sotomayor noted that such a bill was pending.

On March 23, Congress passed, and President Trump signed, the Cloud Act. The law states that a “provider of electronic communication service” shall comply with a court order for data “regardless of whether such communication, record or other information is located within or outside of the United States.”

Microsoft supported the legislation, which also provides a way to facilitate — through bilateral agreements — foreign law enforcement agencies’ access to data held inside the United States.

The Justice Department on Friday obtained a new search warrant requiring Microsoft to turn over the emails. “Microsoft no longer has any basis for suggesting that such a warrant is impermissibly extraterritorial,” Solicitor General Noel J. Francisco wrote in a motion to the Supreme Court. “There is thus no longer any live dispute between the parties, and the case is now moot.”

Microsoft declined to comment on Saturday.