23 Amicus Filings Support Microsoft in Email Extradition Case
Twenty-three amicus filings from a diverse group of tech companies, privacy groups, journalists and lawmakers support Microsoft in a privacy suit headed for oral argument at the Supreme Court Feb. 27 (see 1801180062). U.S. v. Microsoft, the “Microsoft Ireland” case, involves the company’s challenge to a U.S. government warrant demanding emails stored in a server based in Ireland, citing the 1986 Stored Communications Act as justification. The high court granted the government’s application to review a 2nd U.S. Circuit Court of Appeals decision that said Microsoft didn't have to comply with a probable-cause warrant for the customer's emails in Ireland because U.S. law doesn't apply outside the country (see 1710160009).
“Something extraordinary happened in Washington, D.C., yesterday,” Microsoft CEO Brad Smith blogged Friday. Two-hundred eighty-nine groups and individuals from 37 countries signed 23 different briefs supporting Microsoft’s position that “Congress never gave law enforcement the power to ignore treaties and breach Ireland’s sovereignty in this way,” Smith said. “How could it? The government relies on a law that was enacted in 1986, before anyone conceived of cloud computing." Supporters included members of the European Parliament, legal scholars, civil liberties groups, journalists and computer scientists. DOJ didn't comment.
“Fox News agreed with the American Civil Liberties Union,” Smith said. The briefs illustrate the case's major international implications, with governments including Ireland, France and the European Commission, European privacy regulators and members of the European Parliament weighing in -- all concerned about the U.S. government’s ability to ignore “borders, treaties and international law” in the quest to “seize foreign customers’ emails,” Smith said. It’s a conflict that “will leave tech companies and consumers caught in the middle.”
Cross-border data requests must be subject to rigorous safeguards to protect privacy and individual rights, said the New America Open Technology Institute brief filed with 12 business and consumer groups, including the U.S. Chamber of Commerce and the National Association of Manufacturers. "There are no limits to the kinds of U.S.-stored data that foreign nations could seek to compel cloud providers to disclose if the principle advocated by the government … were accepted,” the OTI brief said. The government's position could "significantly deter the use of remote data management technologies by businesses and individuals," the brief said, particularly affecting cloud services. Such a stance could impair U.S. economic growth, it said. The coalition urged the court to “decide the case narrowly and leave the resulting policy questions to Congress.” OTI said.
The concern is significant for journalists, said the brief filed by the Reporters Committee for Freedom of the Press. Journalists work globally reporting on topics of interest to governments, including those hostile to press rights, the brief said. “The United States has long been the standard-bearer for these freedoms. ... In light of the current dangerous global climate for reporters, it is imperative that the United States continues to model jurisdictional restraint lest foreign nations are emboldened to target journalists through their own demands for information.”
IBM said the court should avoid creating a rule “regarding the government’s ability to compel disclosure of cloud data that could have unintended consequences on enterprises” in the U.S. and globally, its brief said. The case involves an individual cloud user, but the court’s decision could affect many enterprises, IBM said. People don’t typically control where or how a service provider maintains their cloud data. It’s different for enterprises, which frequently contract for services for data storage and maintenance, including the data’s physical location. Like OTI, and a congressional lawmakers’ brief, IBM said, “This is a problem for Congress, not this Court to rectify.”
Thirty-five states and Puerto Rico filed an amicus brief supporting the government in December, arguing the lower court's decision "threatens public safety by interfering with the ability of state and local law enforcement agencies to investigate and prosecute serious crimes in their jurisdictions." If the Supreme Court affirms that opinion, "providers will have carte blanche to place their customers' data beyond the reach of law enforcement by simply storing the data on foreign servers," the brief said.