IELR Blog

Joint Spain-UK Transnational Operation Seizes 1.2 Tons of Cocaine; 5 Arrested

November 20, 2017 by Brendan Sakosits Leave a Comment

In a joint Spain-UK effort this month, Spanish national police made a massive 1.2 ton cocaine bust in Granada and Guipúzcoa, dismantling a transnational drug trafficking organization that Spanish national police described as “one of the most active in Europe.” The organization was based in both the UK and Spain.

The trafficking network operated by bringing large quantities of cocaine south from a location near the Basque coastal town of San Sebastian to Granada, before transporting the drugs in small quantities primarily to the UK, “where the average street price for a single gram is around £45.”

After a truck demonstrating abnormal behavior stopped to unload in Granada, police intervened, discovering 531 kilograms of cocaine hidden amongst legal cargo. Later, police unearthed an additional 678 kilos of cocaine that the organization had buried alongside a cannabis plantation less than 50 km’s from the French border, in Zarautz. They also discovered 35 gun cartridges, a list of undercover cops’ license plates, and nearly 5,500 Euros onsite. The operation resulted in the arrests of three British and two Spanish citizens.

While this drug seizure constitutes “one of the largest ever intercepted on Spanish soil,” it is certainly not the first joint Spain-UK international enforcement effort to shake the cocaine trade. As recently as May of this year, the two countries, in a joint operation with Europol criminal intelligence analysis, funding, and operational coordination support, detained 24 traffickers and seized 5.5 tons of cocaine onboard a merchant vessel in Ecuador—also bound for European markets. EU countries often coordinate and cooperate with one another on drug enforcement through transnational law enforcement agencies such as Europol. Focal Point (FP) Cola, Europol’s specialized team tackling cocaine trafficking specifically, has been facilitating such transnational cooperative drug enforcement efforts since 2001.

Europol’s role in this operation demonstrates its utility in the EU’s single-market economy. It will be interesting to watch how UK law enforcement’s relationship with the transnational enforcement agency evolves post-Brexit.

Russia Blocks U.N. Efforts to Investigate Use of Chemical Weapons by Syrian Government

November 17, 2017 by Madeline Henshaw-Greene Leave a Comment

Efforts on behalf of the United States to extend the U.N. Security Council investigation into the use of chemical weapons by the Syrian government came to an abrupt halt on Thursday, November 16th, when Russia vetoed the resolution that the US had put forth in order to extend the Joint Investigative Mechanism (JIM) for another year, according to the Washington Post. Without the resolution, the JIM effectively expired on midnight of the same day. The decision to veto this resolution is one of ten separate actions that Russia has taken to shield its ally, the Syrian government led by President Bashar al-Assad, from the consequences of its use of chemical weapons on civilians. The purpose of the JIM was to investigate whether al-Assad’s government was behind the attack on a Syrian village in April, which has become more difficult, although not impossible, now that the body has disbanded.

U.S. Ambassador to the United Nations Nikki Haley has acknowledged that the investigation may be continued by other fact-finding entities such as the International Commission of Inquiry on Syria, but is nevertheless angered by Russian attempts to impede efforts to get to the bottom of the crisis. She commented that the Russia veto was a “deep blow” to the investigation and its efforts to hold those responsible accountable. She warned that the United States government is on standby to intervene if there are any further attacks, the same way they did back in April when they launched an array of Tomahawks at the military airbase that the planes carrying the weapons had departed from. “As we did in April, we will do it again if we must,” Haley stated.

Russia is defending its actions by claiming that it is in favor of extending the investigation but insists there must be certain changes first. The Russian government reportedly took offense at a report published by the JLM in October that blamed the Syrian military for the attack in April on the village of Khan Sheikhoun that resulted in the deaths of over 90 civilians. Russia referred to the findings as “amateurish”, since the investigators had never visited the site in question and had instead relied on evidence from photos, interviews, and analyzed soil samples. The Russian ambassador to the UN, Vassily Nebenzia, concluded that the investigators were biased against the Syrian government and drafted his own resolution for the purpose of remedying these flaws. Due to a lack of votes, the resolution failed to pass.

The back and forth between the respective UN ambassadors from Russia and the United States is a continuation of the increasing divide that the Syria issue has created between these two countries. President Trump, despite his reportedly friendly relationship with Russian President Vladimir Putin, took to Twitter hours before the vote to urge the renewal of JLM, adding that it was necessary “to ensure that Assad Regime does not commit mass murder with chemical weapons ever again.” When the resolution failed to pass, scathing criticism poured in from ambassadors to the United States and other allied countries. Nikki Haley offered perhaps the most poignant censure, stating that it was a shame “that Russia has revealed itself to have allegiances to the Syrian regime, not to the truth or the protection of innocent victims.”

The Ties That Bind: Paradise Papers Reveal More Connections between Trump Officials and the Kremlin

November 6, 2017 by Zarine Kharazian 1 Comment

On Sunday, the International Consortium of Investigative Journalists (ICIJ), along with 95 media partners, among them the New York Times and the Guardian, leaked 13.4 million documents revealing information about the offshore tax investments of more than 120,000 high-profile individuals and companies to the public.

The project, called the “Paradise Papers,” included the names of Trump administration officials involved with offshore accounts linked to the Kremlin:

Commerce Secretary Wilbur Ross maintained a stake in a shipping company, Navigator Holdings, which includes among its clients the Kremlin-connected Russian petrochemical company Sibur.
Russian investor Yuri Milner, whose investments include a real estate company partly owned by Trump advisor and son-in-law Jared Kushner, used Kremlin-backed funds to invest heavily in U.S. social media companies, such as Facebook and Twitter.

While offshore investments are not illegal in and of themselves, Ross’s and Kushner’s financial ties to Russia are worth particular scrutiny against the backdrop of Mueller’s investigation, as well as revelations about the sheer scope of the systematic Russian propaganda operation mounted on U.S. social media platforms during the 2016 election.

To explore the full extent of over a dozen Trump advisers’ and backers’ offshore connections, visit the ICIJ’s “The Influencers” project page.

ICC Chief Prosecutor Requests Judicial Authorization to Investigate Possible War Crimes in Afghanistan

November 3, 2017 by Zarine Kharazian 2 Comments

On Friday, the International Criminal Court’s (ICC) chief prosecutor, Fatou Bensouda, announced that her office would be seeking authorization to launch an investigation into possible war crimes committed during the U.S. intervention in Afghanistan. Bensouda, a Gambian lawyer, said in a statement:

For decades, the people of Afghanistan have endured the scourge of armed conflict. Following a meticulous preliminary examination of the situation, I have come to the conclusion that all legal criteria required under the Rome Statute to commence an investigation have been met.” In due course, I will file my request for judicial authorisation to open an investigation, submitting that there is a reasonable basis to believe that war crimes and crimes against humanity have been committed in connection with the armed conflict in Afghanistan.

The ICC made public its preliminary examination into the situation in Afghanistan in 2007. In a 2016 report, the Office of the Prosecutor concluded that “there is a reasonable basis” to believe that the following crimes were committed:

Crimes against humanity and war crimes by the Taliban and the Haqqani Network;
Torture and “ill-treatment” by Afghan government forces, including national intelligence and law enforcement agencies;
War crimes of torture and “related ill-treatment” by U.S. military forces deployed in Afghanistan, as well as by the Central Intelligence Agency (CIA) in various detention facilities from 2003-2004, and possibly up to 2014.

Afghanistan ratified the Rome Statute, the treaty from which the ICC derives its jurisdiction, in February 2003. The Office argues that the ICC thus has jurisdiction over Rome Statute crimes committed in the country, including those committed by U.S. military and intelligence officials, from May 2003 onwards. The U.S. government, however, may protest the ICC’s claim to jurisdiction over Americans operating in Afghanistan by countering that the U.S. has never ratified the Rome Statute, and thus has not delegated to the international court criminal jurisdiction over U.S. nationals.

The ICC has faced fierce criticism from various governments, especially from African nations, for its perceived pro-Western bias. Since the court’s founding, nine out of the ten cases (the exception of Georgia) that have advanced to the full investigation stage have involved countries located in Africa. As far as individuals, the court has only investigated Africans leaders thus far.

The perception that the ICC is biased against Africans and in favor of the West has fueled a crisis of legitimacy regarding the international court, with several countries, among them Sudan, Gambia, South Africa, and Burundi, announcing their intent to withdraw from the Rome Statute in the near future. Just last week, Burundi became the first country to officially leave the court.

Bensouda’s decision to push ahead with the Afghanistan investigation, especially if her office delves into American military and intelligence officials’ possible culpability in the conflict, has the potential to revive non-Western countries’ faith in the ICC, which would in turn help bolster the court’s legitimacy.

Neither the CIA nor the Trump administration has commented on Bensouda’s decision thus far. If the investigation is approved by the judges, Bensouda may take several months to decide whether to bring charges, and if so, against whom.

Spanish Prosecutor Requests European Arrest Warrant for Deposed Catalan President

November 2, 2017 by Zarine Kharazian 1 Comment

Image result for puigdemont

Spain’s state prosecutor has requested that a national high court issue a European arrest warrant for deposed Catalan president Carlos Puigdemont for his failure to return to Madrid to testify before the national court, the Guardian reported this morning.

Spain’s national court had summoned Carlos Puigdemont to testify with regards to the Catalan parliament’s declaration of independence from Spain last Friday. Puigdemont and 13 members of his administration face possible charges of rebellion, sedition, and misuse of public funds.

On Monday, just hours after Spanish officials announced that they intended to prosecute leaders of the Catalan separatist movement on rebellion charges, the Spanish press reported that Puigdemont, along with several other Catalan ministers, had arrived in Belgium. Speculation ensued that Puigdemont intended to seek political asylum from Brussels. The ousted president refuted the claims at a Tuesday press conference.

As several senior members of his administration, among them the speaker of the Catalan parliament, Carme Forcadell, and five other deputies arrived in Madrid to testify at a Thursday morning hearing, Puigdemont remained in Belgium. His attorney, Paul Bekaert, emphasized that his client would cooperate with Spanish and Belgian authorities if asked.

The Belgian government has extended no overtures to Puigdemont thus far. “He will be treated like any other European citizen,” Belgian Prime Minister Charles Michel stressed in a statement. “He has the same rights and duties… no more, no less.” EU citizens can apply for political asylum in Belgium, but such cases are rare. Only 49 such applications were filed last year, according to the Financial Times.

Does the EAW Apply to Political Crimes?

The Council Framework Decision of June 13, 2002, the document establishing the legal basis of the European arrest warrant, states that EU Member States have an obligation to execute an EAW issued by a fellow Member State “on the basis of the principle of mutual recognition.”

The Framework Decision also notes grounds for exceptions to this obligation, however. In particular, the decision explicitly states that it does not prohibit Member States from refusing to surrender a person “for whom a European arrest warrant has been issued when there are reasons to believe, on the basis of objective elements, that the said arrest warrant has been issued for the purpose of prosecuting or punishing a person on the grounds of his or her sex, race, religion, ethnic origin, nationality, language, political opinions or sexual orientation, or that that person’s position may be prejudiced for any of these reasons.”

Puigdemont faces an uphill legal battle to demonstrate to Brussels that he would not be guaranteed a fair trial or subject to discrimination in Spain. While discrimination on the basis of political opinion may be grounds for non-execution of the EAW, serious criminal charges of a political nature, such as rebellion and sedition, are usually extraditable offenses.

Sessions Declares MS-13 a ‘Priority Target’ and Links Gang to Opioid Crisis

October 27, 2017 by Madeline Henshaw-Greene 1 Comment

Attorney General Jeff Sessions delivered remarks to the International Association of Chiefs of Police on Monday, October 23, in which he announced that the Mara Salvatrucha, or MS-13, gang would be elevated to priority status for the Department of Justice’s Organized Crime Drug Enforcement Task Forces (OCDETF). According to the DOJ, this move is the next step in “fulfilling President Trump’s goal of stamping out the brutal transnational crime organization”. During his remarks, Sessions repeatedly emphasized the significance of the threat that MS-13 poses to U.S. national security by equating the street gang with international drug cartels, who both he and the current administration have blamed for the current opioid epidemic.

By making MS-13 a priority target for the branch of law enforcement that deals with organized crime, Sessions is granting the OCDETF more power to use the law against drug crimes. This decision will provide the task forces with the ability to utilize the Racketeer Influenced and Corrupt Organizations Act (RICO), which in turn will widen the federal government’s scope for prosecution of the gang. It will also allow for further collaboration between several other agencies involved in fighting organized and drug-related crime, in particular the DEA and the FBI.

However, Sessions has drawn criticism for exaggerating the level of threat that MS-13 poses, particularly in the case of drug trafficking. In the DEA’s annual report on National Drug Threat Assessment, MS-13 represented only a small portion of illegal drug traffickers nationwide. Furthermore, while there has been an increase in violent crimes committed by members of MS-13 in certain cities, none of these incidents had anything to do with international drug trafficking, as Attorney General Sessions seemed to imply. Even in cases when drug trafficking has been attributed to MS-13, the charges typically amount to selling heroin at the street level, and are in no way similar to the type of crime that is usually attributed to an international drug cartel.

Furthermore, Sessions’ connection between MS-13 and the opioid epidemic seemed to raise eyebrows. Once again, the MS-13 plays little, if any, role in the sale of opioids, and even in cases of microtrafficking, the most common drugs involved are marijuana and cocaine. Some critics are concerned that this is an attempt to deflect blame from the federal government and pharmaceutical companies, who most agree are to blame for the current crisis. These new regulations may aid prosecutors in charging members of MS-13 in homicide cases, but it is difficult to see how a crackdown on a street gang will have a significant effect on resolving the opioid crisis.

Burundi Becomes First Nation to Withdraw From the International Criminal Court

October 27, 2017 by Zarine Kharazian 5 Comments

Burundi President Pierre Nkurunziza |Source: CNN

On Friday, Burundi officially withdrew from the International Criminal Court (ICC), an ICC spokesperson has confirmed. Last October, Burundian President Pierre Nkurunziza signed a decree to withdraw the country from the Rome Statute, the treaty that established the International Criminal Court’s (ICC) structure and jurisdiction. That withdrawal takes effect today. The small east African nation is the first country to ever withdraw from the court, which was established in 1998 to try high-level war crimes and other crimes against humanity, such as genocide.

2015 Political Violence Triggers ICC Investigation into Nkurunziza’s Administration

President Nkurunziza’s decision comes amidst increased scrutiny of his administration from the court following a period of political violence in Burundi. The violence began in April 2015, after Nkurunziza announced his decision to run for a third presidential term. His announcement triggered a failed military coup, widespread protests, and a fierce and violent crackdown on the opposition that has left more than 430 people dead. According to the U.N. Refugee Agency, more than 300,000 Burundians have fled the country since the protests began. Most have sought refuge in neighboring Tanzania and Rwanda.

In April 2016, the ICC’s chief prosecutor, Fatou Bensouda, announced that she was launching a preliminary investigation into the situation in Burundi. “My Office has reviewed a number of communications and reports detailing acts of killing, imprisonment, torture, rape and other forms of sexual violence, as well as cases of enforced disappearances,” Bensouda stated. “All these acts appear to fall within the jurisdiction of the ICC.”

Will Other States Follow Suit?

Burundi is accusing the ICC of being biased against African states. This allegation is not novel; in February 2017, the African Union made headlines by passing a non-binding resolution calling for the withdrawal of its member states from the ICC. The resolution cited the “systemic disadvantage” that African nations face before the court as grounds for the withdrawal. To date, four out of ten of the court’s preliminary examinations and nine out of ten of the cases that advanced to the full investigation stage have involved African states. In addition, all of the individuals brought to trial before the ICC have been African. Bensouda has previously pointed out, however, that in six of the nine Africa-based cases under full investigation, the court intervened at the request of the country involved.

The African Union’s resolution, however, proved unsuccessful. Of the 55 member states, only Burundi, South Africa, and Gambia announced an intention to withdraw from the ICC, and Sudan and Gambia later retracted their pledges.

It remains to be seen whether Burundi’s withdrawal will inspire other African states under international scrutiny to do the same. The African continent’s attitude towards the ICC is by no means monolithic – several African countries, among them Nigeria, Senegal, and Botswana, either rejected the African Union’s “collective withdrawal” resolution outright or later expressed regret at their fellow member states’ decisions to withdraw.

Nonetheless, the perception held by many that the ICC disproportionately targets Africans and undermines African states’ sovereignty undercuts the court’s legitimacy. As an international body, the court lacks an enforcement mechanism; instead, it relies on its member states to execute warrants of arrest. If African states perceive bias against them in the court’s investigations, they will be less likely to fulfill their “duty to cooperate” per the Rome Statute. In short, the ICC has an image problem – and that problem in turn impairs the international court’s ability to dispense justice.

U.S. Lifts Visa Ban on Magnitsky Activist Bill Browder

October 25, 2017 by Zarine Kharazian Leave a Comment

Bill Browder, a billionaire hedge fund manager known for his full-throated criticism of the Kremlin’s human rights abuses, has had his U.S. visa restored after an initial ban triggered as a result of an INTERPOL red notice issued against him.

Browder, who traded his American citizenship for British citizenship to avoid paying US taxes on foreign investments, rose to prominence in 2008 when his Russian tax attorney and friend, Sergei Magnitsky, died under mysterious circumstances in a Russian prison just days after his scheduled release. In 2008, Magnitsky had uncovered and publicized a $230 million tax fraud scheme implicating the Russian government, and had been investigated and imprisoned by Russian authorities as a result. Following Magnitsky’s death, Browder initiated a campaign calling for the international community to punish Russian government officials linked to Magnitsky’s death.

Browder’s campaign proved largely successful. In 2012, Congress passed the Magnitsky Act, which imposed sanctions and asset freezes on at least 18 individuals implicated in Sergei Magnitsky’s death, as well as other human rights abuses. Russia responded to the legislation by banning U.S. adoptions of Russian children.

Interest in the Magnitisky Act resurfaced in recent weeks following revelations in July 2017 that Donald Trump Jr. met with a Russian attorney, Natalia Veselnitskaya, during the elder Trump’s campaign. Trump Jr. has claimed that the meeting primarily concerned discussion of the Magnitsky Act, which Veselnitskaya had lobbied against in 2012.

In an interview with Newsweek, Browder said that he learned of the ban when the U.S. Department of Homeland security denied his application for an Electronic System Travel Authorization. According to statistics released by DHS, over 99% of all ESTA applications are approved within 5 seconds. Browser took to Twitter to voice his frustration on Saturday:

Not only did Putin add me to the Interpol list, but the US simultaneously revoked my visa. @jaynordlinger explains https://t.co/d8KskJ5CTK

— Bill Browder (@Billbrowder) October 22, 2017

Browder believes that the ban was triggered by an INTERPOL Red Notice issued against him at Russia’s request. INTERPOL’s infamous red notice “is the closest instrument to an international arrest warrant in use today,” according to the Department of Justice’s U.S. Attorneys’ Manual. The Kremlin has attempted to use the international police agency’s red notice system to punish Browder four times before, but all prior attempts had been rejected by INTERPOL’s internal oversight body on the grounds that they were politically motivated.

The International Enforcement Law Reporter has covered the abuse of INTERPOL’s notice system in recent issues. For more analysis of the phenomenon, see “INTERPOL Red Notice Abuse: Which Member Countries are the Primary Offenders?” and “Mass Prosecutions and INTERPOL Red Notice Abuse,” both by Yuriy Nemets, in the International Enforcement Law Reporter.

Two Judges Temporarily Suspend Third Iteration of Trump’s Travel Ban

October 18, 2017 by Madeline Henshaw-Greene Leave a Comment

President Trump’s latest version of the travel ban his administration has been trying to implement since the first days of his taking office has come to yet another halt mere hours before it was set to take effect. This third iteration called for the complete suspension of travel into the United States for individuals from Syria, Libya, Iran, Yemen, Chad, Somalia, North Korea, and Venezuela in the interests of national security amidst the ongoing threat of international terrorism. The order was set in go into effect on Wednesday, October 18, but was temporarily blocked on Tuesday by Judge Derrick K. Watson of Hawaii, the same judge responsible for freezing the second version of the ban in March. U.S. District Judge Theodore D. Chuang of Maryland followed up with another, albeit less complete, halt early Wednesday morning.

According to Judge Watson, the latest travel restrictions suffer “from precisely the same maladies as its predecessor”, namely that it “plainly discriminates based on nationality” in direct contradiction to the principles set forth by the Founding Fathers. He also argued that the Trump administration had not given direct evidence to support that this ban was in America’s best national security interests, in particular because they failed to show a connection between a person’s nationality and the threat they presented. Judge Chuang responded with a partial block of the directive by ruling that the administration could not enforce its restrictions on any individual with a “bona fide” relationship with the United States, meaning anyone with family members or a professional or legitimate engagement within the country. He reasoned that the president’s language both on the campaign trail and on Twitter had convinced him that this was yet another attempt at a Muslim ban and was therefore unconstitutional.

Ian Prior, the spokesperson from the Department of Justice, commented that the rulings represented a violation of the separation of powers between the executive and judicial branches, and that the Trump administration intended to appeal. This marks the third time that the government will have to go to court against the state of Hawaii in order to defend its directive. It is important to note that both of these rulings are only temporary and are intended to maintain order during the legal battle until the appeals court can make its decision. While Judge Watson’s previous ruling was upheld by the appeals courts, the government then appealed to the Supreme Court, which allowed the ban to go into partial effect.

Sources:

New York Times – Judge Temporarily Halts New Version of Trump’s Travel Ban

Washington Post – Second judge rules against latest travel ban, saying Trump’s own words show it was aimed at Muslims

Justice Department and Microsoft Set to Square Off Before Supreme Court In Landmark Data Privacy Case

October 18, 2017 by Zarine Kharazian 2 Comments

Yesterday, the Supreme Court granted the Department of Justice’s petition for a writ of certiorari in its dispute with Microsoft over access to private emails stored at Microsoft’s Dublin, Ireland data center. At issue is whether the warrant provisions of the Stored Communications Act (SCA) apply extraterritorially, such that they compel Microsoft, an electronic service provider to produce private electronic communications stored on servers in Ireland for the United States government.

Background

In December 2013, the Justice Department served a warrant to Microsoft, compelling the company to disclose information pertaining to a user’s email account. The government asserted that it had probable cause to believe that the account was being used to facilitate criminal drug activity.

The Stored Communications Act (SCA) – which is part of the broader Electronic Communications Privacy Act (ECPA) of 1986 – allows the government to require that an electronic communications provider disclose information about a particular communication upon being served a probable-cause-based warrant. A federal magistrate judge issued such a warrant in this case.

In response to the warrant, Microsoft turned over the information pertaining to the account stored on its U.S. servers, such as the user’s address book. The company refused, however, to turn over the information stored in Dublin. Microsoft assigns accounts to particular data centers based on their proximity to users’ country of residence. The account in question had been assigned to Microsoft’s Dublin center, and thus all of the account’s email content – the subject lines as well as content of emails – was stored solely in Dublin, not in the United States.

Microsoft argued that the U.S. government could not invoke the Stored Communications Act to compel the production of data stored in a foreign country. Instead, the company stated that the U.S. government had to obtain the consent of the Irish government first, by utilizing an alternate channel established for obtaining such communications: the United States’ Mutual Legal Assistance Treaty (MLAT) with Ireland.

A district court, however, affirmed the magistrate judge’s ruling on de novo review, and held Microsoft in contempt for failing to comply with the warrant.

The case then came before the Second Circuit Court of Appeals. In a unanimous decision, the Second Circuit reversed the district court’s ruling, reasoning that the lower court “lacked authority to enforce the Warrant against Microsoft,” on the grounds that “[n]either explicitly nor explicitly does the statue envision the application of its warrant provisions overseas.”

Now, the case is set to go before the Supreme Court during its 2017-2018 term.
Modernizing Data Privacy Protections: The Role of Congress or the Courts?

In a blog post posted on October 16, 2017, Microsoft’s President and Chief Legal Officer, Brad Smith, argued data privacy laws in the United States should be modernized. “The current law, ECPA, was enacted in 1986 when the World Wide Web was still a few years away from being invented and no one conceived of conducting most work and personal business online,” Smith writes. “A world connected by cloud services simply didn’t exist. The ways in which we communicate have radically changed over the past three decades — but the laws governing those communications haven’t. Current laws don’t adequately support the needs of law enforcement anywhere in the world or protect our rights.”

Smith stresses, however, that it is Congress, not the courts, who should take the helm in this effort. “We believe that rather than arguing over an old law in court, it is time for Congress to act by passing new legislation, such as the International Communications Privacy Act (ICPA) of 2017.”

Smith’s argument here – that data privacy laws should be modernized by passing new legislation in Congress, rather than by challenging existing statutes in the courts – echoes the argument put forth in Microsoft’s opposition brief. “Congress alone has the authority and the institutional competence to craft a new legislative scheme for a world not anticipated in 1986,” Microsoft’s counsel writes. “And it has remedial options simply not available to this Court.” Microsoft argues that the courts, in interpreting the Stored Communications Act, have traditionally employed an “all-or-nothing” approach with regards to the question of extraterritoriality–either law enforcement may compel production of all communications stored abroad, or it may demand none of it. This approach thus risks disrupting “the ‘harmony’ between nations that is ‘particularly needed in today’s highly interdependent commercial world.’”

Interestingly, the digital privacy groups that submitted a joint amicus curiae brief in support of Microsoft’s petition before the Second Circuit veered away from Microsoft’s choice-of-forum argument. Rather than supporting Microsoft’s assertion that it is the job of Congress, not the Court, to modernize the SCA, the privacy groups – namely, the Brennan Center for Justice, the American Civil Liberties Union, the Constitution Project, and the Electronic Frontier Foundation – make a different argument altogether. They state in their brief:

Modern technology has dramatically expanded the reach of the doctrine far beyond records of bank transactions and telephone calls. The Supreme Court recognized this problem in Riley, reasoning that Fourth Amendment privacy protection must account for this new technological reality. There, in holding that cell phones may not be searched under the search-incident-to -arrest warrant exception, the court noted that modern cell phones—just like cloud-based email—are capable of storing a vast amount of personal information and thus deserve the highest privacy protections.

Here, the amici curiae apply a Fourth Amendment analysis – an amendment that Microsoft does not even mention in its brief — to the question of whether the SCA applies extraterritorially. It remains to be seen whether the Supreme Court will be sympathetic to Microsoft’s and the supporting amici curiae’s arguments. Whether or not the Justices side with Microsoft, the line of reasoning they choose to privilege in their opinions –either the choice-of-forum or the Fourth Amendment analysis – will have implications for how similar legal quandaries are framed in the future.

Take a look at the case filings here.