On Thursday, January 11, Microsoft filed its brief in the U.S. v Microsoft case set to go before the Supreme Court in the 2017-2018 term. The central question in the case is whether the Stored Communications Act allows the U.S. government to compel an electronic services provider, through a probable-cause-based warrant, to disclose electronic communications stored abroad. For further background on this case, see our past coverage on the IELR Blog here and here.
Microsoft argues that Congress did not envision the Stored Communications Act to apply overseas. In 1986, when the statute was enacted, it was unimaginable that one day governments could secure data from overseas rapidly and inexpensively. Under the presumption against extraterritoriality established by Supreme Court precedent, legislation does not apply extraterritorially unless Congress clearly states or intends otherwise. Thus, the SCA has no extraterritorial application.
According to Microsoft, a warrant that compels the copying and importation of electronic communications stored overseas is an impermissible application of the SCA. The government argues that it is seeking a domestic application of the warrant, because the ultimate disclosure of the emails would occur in the U.S. But the SCA protects the security of “communications in electronic storage,” not “disclosure.” Thus, the Court should interpret the statute to apply to “domestically stored communications,” not “domestic disclosures of communications.” It follows that a warrant seeking to compel the disclosure of communications stored abroad (regardless of where they are ultimately disclosed) is extraterritorial.
Microsoft then scrutinizes the Government’s claim that “a person who complies with a subpoena [cannot] become a government agent simply by collecting and producing evidence in its possession.” Microsoft denounces the claim as misleading; the act of copying and disclosing the email content to the Government would involve the execution of a warrant, not a subpoena.
Interestingly, Microsoft cites the “international discord” over the case as confirmation” that “the warrant entails an impermissible extraterritorial application of the SCA.” Indeed, U.S. v. Microsoft is unusual for the amount of interest and input it has generated from foreign governments, companies, non-profits, and individuals. In a blog post published on January 19, 2018, Microsoft’s President and Chief Legal Officer, Brad Smith, noted that thus far 23 amicus briefs by 289 entities and from 37 countries have been submitted in support of Microsoft. Even more striking is the sheer range of political ideologies among the supporters. U.S. Senators Orrin Hatch (R-UT) and Christopher Coons (D-DE), the Chamber of Commerce, the ACLU, Vox Media and Fox News are among the domestic supporters.
See the full list of signatories here.