Congress, Not the Supreme Court, Should Decide Microsoft’s Cloud Case


The United States Constitution prohibits the government from engaging in any unlawful search and seizure of property belonging to an individual or entity. Before it can act, a warrant, signed by a judge, is required.

On Tuesday, the United States Supreme Court was asked to determine whether this doctrine, enshrined in the Fourth Amendment, needs to be updated in a case involving information stored on what has commonly become known as “the cloud.”

First, a little background. In 2013, federal prosecutors seeking to make a case against someone they believed to have engaged in drug trafficking sought and obtained a warrant the government believed consistent with the Electronic Stored Communications Act of 1986, a measure that allows it to obtain records from an internet service provider if it can demonstrate to a magistrate that probable cause exists to believe a crime has been committed.

Unfortunately for all those involved, this turned out to be something other than a normal request. Some of the records the U.S. government wanted to see were “on the cloud,” stored on servers located in Ireland, leaving the company that operated both the email account and the servers a choice: comply with the warrant in violation of Irish law or tell the feds to pound sand.

The company in question, Microsoft, chose the latter option and, for its trouble, ended up in court itself.

On Tuesday, the United States Supreme Court heard oral arguments in the case which, as it happens, is one of many that can be expected until Congress acts to clarify the responsibilities American companies operating internationally have regarding information stored in cyberspace.

Congress should act, and quickly – no matter what the court eventually decides. Its already considering legislation introduced by Utah Republican Sen. Orrin Hatch and Chris Coons, Democrat of Delaware, (with a companion bill in the U.S. House of Representatives) to create a process through which any ambiguity and potential liability can be addressed.

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The CLOUD – for Clarifying Lawful Use of Data – Act would, as Hatch said upon its introduction, authorize “the United States to enter into bilateral data-sharing agreements with qualifying countries under which the United States agrees to lift its bar on disclosure to law enforcement in a qualifying country if that country similarly agrees to lift any such bar it has on disclosure to U.S. law enforcement.”

As Hatch described it, the legislation he and others are proposing would set forth “stringent requirements” to accompany such agreements to insure privacy and data security would be maintained and would prevent foreign entities from targeting or requesting information on American citizens.

The Hatch/Coons legislation would also clarify that any warrant served on a U.S. internet service provider like Microsoft may reach data stored overseas provided the data is within the provider’s possession, custody or control while at the same time giving email and cloud computing providers the ability to challenge a warrant if complying with it would cause them to violate the laws of a foreign country.

Together this enables U.S. law enforcement agencies investigating crimes to obtain information stored overseas without having to resort to cumbersome diplomatic channels, while allowing the courts to determine whether, in the interests of international comity, the warrant should be modified or quashed.

The Hatch/Coons approach to the problem has attracted the support of the influential Federalist Society, an organization of conservative legal minds with considerable influence on the Trump White House. It described the conflict the Supreme Court is being asked to decide thusly on its blog: “Every country has its own laws on privacy and electronic storage, so what is legally required in nation A might be explicitly prohibited in nation B. This leads to companies, not Congress, having to choose between disregarding a court order from one nation and violating the privacy laws of another, all the while throwing customers overboard with ad hoc decisions.”

As much as we depend on the courts to determine the outcome of such disputes, the Federalist Society and others who argue in favor of Congress stepping in – even before the Supreme Court has the chance to rule – are right. Certainty is important, especially in areas in which technology is so far ahead of established law. In this case the high court has been asked to make new law rather than interpret the meaning of an existing statute, and that power is one that should be left to Congress. The Hatch/Coons proposal seems to be a reasonable, targeted response to the problem raised by the Microsoft case that will allow for the use of cloud computing to continue to expand unimpeded by legal concerns.



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