The Supreme Court last Tuesday heard a case between Microsoft and DoJ concerning whether the emails of an alleged drug dealer must be turned over to the government pursuant to a search warrant to that effect. The catch is that the emails are stored exclusively on servers in Ireland—nominally beyond the reach of the US’ long arm of the law.
The statute in question is the Stored Communications Act, enacted 30 years ago before email and similar electronic communications were available.
Microsoft handed over some account data that was stored in the US but said it shouldn’t have to hand over the emails, which were stored on a server in Ireland.
The Second US Circuit Court of Appeals sided with Microsoft, ruling the 1986 law didn’t apply beyond US territory.
DoJ and the participating States’ Attorneys General argued that the appellate decision, if left intact, would hamper the government’s crime-fighting ability. That’s likely accurate, but there are two things about that. One is that the convenience of government is not an excuse for limiting individual liberties either directly or through the companies we own. Some of you have heard that from me before.
The other thing, though, is that extending the statute to reach beyond our borders is a political decision, not a legal one. Only the political arms of our government—Congress and the President acting together (or with Congress overruling a veto)—can make that decision; only the political arms of our government can extend the Act or write a new one to fill the apparent gap.
There’s this bit of disingenuousity, too, from Solicitor General Noel Francisco:
Microsoft’s employees could prepare that disclosure without leaving their desks in the United States[.]
They could prepare such disclosures without leaving their desks in the US in 1986 when the Act was passed, too. All they had to do was write letters to the managers of the overseas storage facilities. Nothing has changed here except that email has replaced gofers and the mail room. Nor has the status of the material stored overseas changed.
On the other hand, Microsoft and other massive tech companies also are raising red herrings.
Microsoft, Google, and other technology companies say…the case could threaten American dominance in the $250 billion cloud-computing industry, because foreign clients won’t use US firms if their data isn’t protected.
That also may be true, and it’s also not relevant. That’s a question that’s strictly a business matter and not a legal one. To the extent government help is useful in filling this business gap, it’s also a political question, and these businesses need to seek their recourse through those political arms of our government.
Finally, there already is an alternate route to getting the emails, as admitted by DoJ in their filings:
There is a diplomatic process, governed by legal assistance treaties, that allows the US to request that foreign law-enforcement counterparts share sought-after data, but it can be slow and ineffective, the department said.
There’s that convenience thing, again.
What does the text of the Act say? That’s what the Justices must apply, not a phantom Act that doesn’t exist but that does represent what Justices or DoJ officials might wish the Act to say. Article I, Section 1, is quite clear about who gets to write the statutes in our system of government, and extending the reach of an existing statute is law-making that is beyond the reach of any member of the judiciary or of the DoJ.