Microsoft, US Spar at High Court Over Emails Stored Abroad

WASHINGTON (CN) – Resisting a search warrant for emails stored on Irish servers, Microsoft told the Supreme Court on Tuesday that ruling against it would create diplomatic headaches.

“If you sent a robot into a foreign land to seize evidence, it would certainly implicate foreign interests,” said Joshua Rosenkranz, an attorney for the tech giant with the New York firm Orrick Herrington and Sutcliffe.

At oral arguments this morning, Rosenkranz emphasized repeatedly that the search implicates more than a few keystrokes, and requires a physical intrusion of Microsoft’s storage facility in Dublin.

With the government hinging its warrant on the Stored Communications Act, a 1986 law that long predates the boom of email, Justice Ruth Bader Ginsburg questioned then judiciary’s role in sorting out the dispute.

“Wouldn’t it be wiser just to say let’s leave things as they are, if Congress wants to regulate in this brave new world, shouldn’t it do it?” Justice Ruth Bader Ginsburg asked during the argument for the government.

Deputy U.S. Solicitor General Michael Dreeben emphasized that the law at issue focuses on the disclosure of information, not the search itself.

Steering the case clear of any extraterritoriality issues, Dreeben argued that the information may be stored on a server in Ireland, but that the disclosure of the emails would happen in the United States.

“We’re not here arguing that this application is extraterritorial and permissible,” Dreeben said. “What we’re saying is that it has always been the rule from decisions in this court and decisions in the lower court in a basically unbroken line that when a party is before a U.S. court and a court issues an order to that party that says produce information, that’s domestic conduct.”

Chief Justice John Roberts appeared to echo this point later, noting that Congress specifically used the word “disclosure” in the heading for the warrant-procedure section of the Stored Communications Act.

“It seems to me that the government might have a strong position there that the statute focuses on disclosure,” Roberts said. “And disclosure takes place in Washington, not in Ireland.”

The distinction did not appear to impress Justice Sonia Sotomayor, however.

“You describe it as if it’s only a disclosure, but it’s really a search,” Sotomayor said.

Roberts grilled Rosenkranz meanwhile when the attorney denied that Microsoft’s business could benefit from a ruling that effectively lets it operate a haven for people who want to keep their emails out of government reach.

“Well, but you might gain customers if you can assure them, no matter what happens, the government won’t be able to access their emails,” Roberts said.

In the underlying case, Microsoft turned over information about one of its user’s accounts after receiving a U.S. search warrant but it refused to give up the actual emails because they were stored in Ireland.

Though a federal judge declined to quash the warrant, the Second Circuit in Manhattan overturned that order, finding that the Stored Communications Act does not apply overseas.

Rosenkranz argued for Microsoft Tuesday that the Stored Communications Act is focused on the storage of information, not its disclosure.

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