Police Up, Privacy Down After Microsoft SCOTUS Oral Arguments
A case reported on here back in 2016 has finally made its way to the U.S. Supreme Court, where a decision is likely to determine the scope of privacy rights enjoyed by American internet users until Congress updates the current antiquated law.
The litigation, which involves Microsoft customer data stored on servers in Ireland, pits privacy rights against law enforcement, and the justices wasted no time drawing out the tension between those two competing concerns in oral arguments.
The justices generally voiced more concern over the effects of upholding the lower court’s ruling on law enforcement than on customer privacy. The consensus seemed to be that when email providers like Microsoft, Google, and Yahoo resist U.S. search warrants for customer emails stored overseas, criminal investigations could be hampered.
In response to arguments by Microsoft lawyer Joshua Rosenkranz that the Stored Communications Act (“SCA”) doesn’t allow the U.S. government “to unilaterally reach into a foreign land to search for, copy, and import private customer correspondence,” Chief Justice John Roberts pointed out that Microsoft is a U.S.-based company with control over where it stores emails and other consumer data, and that “it’s not the government’s fault that it’s located overseas.”
All of the major tech companies and even some foreign entities filed friend-of-the-court briefs siding with Microsoft’s position, but none of the justices appeared to subscribe to Microsoft’s reading of the SCA. One topic did unite the justices with most legal critics: the need for Congress to replace the SCA and pass legislation geared to current technology. Justice Samuel Alito commented that “it would be good if Congress enacted legislation that modernized this. But in the interim, something has to be done.”
The fact that all of the major tech companies have lined up on the side of consumer privacy should be encouraging to privacy rights advocates. I recently had the privilege of participating in a Fourth Amendment case involving a search warrant seeking the entire contents of our client’s Gmail account. We argued that our client, who was not a named defendant but merely a target of investigation in an ongoing case, had the right to challenge the warrant before its execution, mainly because the rules that applied to “brick-and-mortar” warrants were woefully inadequate to address the privacy concerns of the digital age. We were ultimately unsuccessful, but I got a first-hand look at the efforts Google is expending to protect privacy rights, and I now have a different, positive view of the company, despite knowing they are probably mining my data even as we speak.
A decision from the court is expected in June.
