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Supreme Court asked to rule on reach of warrants for emails

On Behalf of | Jul 7, 2017 | Drug Charges |

Should a warrant from an American judge be enforceable in Ireland? What if enforcing it was as easy as the click of a mouse?

Those are the questions in a federal case involving a Microsoft email address federal agents suspect is being used for drug trafficking.

The federal agents were able to get a warrant for the email account, seeking both the contents of any stored emails and identifying information about the user. They served the warrant on Microsoft, which was willing to comply, in large part.

That is, Microsoft was willing to turn over any emails and identifying information stored on U.S. soil — but they weren’t. They were largely stored in servers in Ireland. Microsoft resisted turning those over, pointing out that the warrant had been issued by a U.S. judge and could not be enforced abroad.

The Trump Administration pointed out that turning over the emails wouldn’t require traveling to Ireland, bothering any Irish officials, or indeed requiring any Irish resident to comply with the warrant. Instead, Microsoft could retrieve the emails remotely by clicking a few links.

A federal appellate court disagreed. The warrant, which was obtained through the 1986 Stored Communications Act, only applies in the U.S. That law was written long before emails could be stored in the cloud or in servers in other countries.

Why would a company like Microsoft refuse to turn over information to the government?

According to an American University law professor interviewed by the Associated Press, companies have been much less willing to cooperate with government demands for information since the extent of federal surveillance was revealed in documents leaked by former NSA contractor Edward Snowden.

In a blog post later, Microsoft’s president said that the administration’s position that companies should retrieve information from abroad on behalf of federal investigators “would put businesses in impossible conflict-of-law situations and hurt the security, jobs, and personal rights of Americans.”

Claiming that “hundreds if not thousands of investigations of crimes — ranging from terrorism, to child pornography, to fraud” could be damaged by Microsoft’s resistance, the Administration asked the U.S. Supreme Court to hear the case. The high court is expected to announce whether it will hear the case in the fall.

Meanwhile, legal experts point out that Congress, not the Supreme Court, is best suited to bring the 1986 Stored Communications Act up to date. Indeed, one of the judges on the federal appellate court called for “congressional action to revise a badly outdated statute.”