Last Monday, the Supreme Court granted certiorari in the Microsoft search warrant case, a case in which Microsoft challenged the U.S. government’s right to use the warrant process to obtain certain emails stored overseas. Some view the upcoming decision as signaling the level of access the U.S. government will have to the growing troves of data U.S.-based technology companies hold about citizens of the world. And regulators in the EU and other jurisdictions may view a reversal of the Second Circuit decision as a negative factor when considering the protections the U.S. government afford their citizens’ data. The case was previously decided twice in Microsoft’s favor in the Second Circuit, which declined to grant en banc review by a 4-4 decision.
Microsoft has publicly advocated their position as the case has wound its way through the courts, and in a Monday blog post focused on legislative solutions to the impasse, “The current laws were written for the era of the floppy disk, not the world of the cloud. 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.”
The Microsoft case is the second case the Supreme Court will hear this term that challenges interpretations of the aging Stored Communications Act (SCA)—the other being Carpenter v. United States. That case centers on whether the use of cell tower records to determine an individual’s location amounts to a 4th Amendment search or if such a search can be justified under the processes outlined in the SCA.
For more on the Microsoft case, the alternative to the warrant process for obtaining overseas data, and subsequent decisions that go against the Second Circuit opinion see our recent article published in the Spring 2017 edition of International Law Quarterly.