Supreme Court will decide Microsoft privacy case

On October 16, 2017, the United States Supreme Court granted the Justice Department’s petition for a writ of certiorari and will hear an appeal from a Second Circuit decision barring the government from accessing user data stored overseas by Microsoft.   As previously suggested, this case brought under the Stored Communications Act (“SCA”) has significant implications for transnational companies who maintain or store data outside the US.

By way of background, the Second Circuit ruled that data stored overseas was not subject to the SCA – which typically allows the government to access the contents of stored communications – including emails, that are more than 180 days old, using a subpoena, court order, or warrant.  Ultimately, the Court of Appeals agreed with Microsoft’s position that absent congressional authorization statutes such as the SCA are presumed to have no extraterritorial effect and given the lack of such statutory authorization, the warrant should have been quashed.

Given that there were a flurry of amicus briefs filed – as well as an animated government brief suggesting that the Second Circuit’s decision was “highly detrimental” to criminal law enforcement, it will be interesting to see which argument the Court ultimately adopts.  Microsoft certainly fought an aggressive PR battle opposing Supreme Court review – seeking instead that its lobbying firms wage war in Congress.  In fact, Microsoft suggests in a blog post that the momentum for a legislative solution continues in Congress despite the Court taking on the case.

In keeping with the Halloween season, Microsoft’s Chief Legal Officer tries to scare up some support for a legislative solution:  “If U.S. law enforcement can obtain the emails of foreigners stored outside the United States, what’s to stop the government of another country from getting your emails even though they are located in the United States?”

Even though his analogy obviously falls flat, the Court’s docket – between this Microsoft case and the SCA location data case previously taken up by the Court in June, may very well ultimately generate a scary result for one or more advocacy groups located on the privacy continuum.