Microsoft Warrant Case Tossed From High Court

WASHINGTON (CN) – The Supreme Court closed the book Tuesday on a search warrant dispute concerning Microsoft customer information that the tech giant maintained on an overseas server.

While the underlying case turned on a 1986 law called the Stored Communications Act, which predated the modern internet, an unsigned opinion from the Supreme Court this morning notes that the controversy was mooted last month when President Donald Trump signed the CLOUD Act, short for Clarifying Lawful Overseas Use of Data.

Invoking the CLOUD Act soon thereafter, federal prosecutors in New York replaced their warrant against Microsoft pursuant to the new law.

Microsoft protested the original warrant on the basis that execution of a search warrant against its servers in Dublin, Ireland, threatened its business model, the sovereignty of other nations and the ability of tech companies to offer secure products to their users.

Though Microsoft and other companies have backed the CLOUD Act, civil rights groups have complained that the legislation removes oversight from the process of countries working with tech companies on information requests.

For decades, foreign governments requesting information from a U.S. company would have to work through diplomatic procedures known as MLATs, short for mutual legal assistance treaties.

The CLOUD Act meanwhile allows countries to work with the companies directly, bypassing government scrutiny so long as they pass unspecified vetting of their human rights records.

Once a foreign government is safe-listed, that nation can freely request information held by tech companies without congressional oversight for any particular request for five years, but Amnesty International’s U.S. director Naureen Shah noted in an interview last month that it is not unusual for a foreign government’s human rights record to undergo a dramatic decline during those years.

Amnesty International has unique insight into that danger.

As reported by Courthouse News reporter Adam Klasfeld, the Turkish government jailed the group’s Turkey chair Taner Kilic in an ongoing crackdown on journalists, human rights workers and other critical voices that country has targeted in the wake of a coup attempt against its President Recep Tayyip Erdogan.

“If you had looked at Turkey in 2012 or 2013, and matched it against the criteria in this bill, Turkey might have passed muster,” Shah told Klasfeld. “Of course, we know that especially since the coup in mid-2016, Turkey has become the world’s largest jailer of journalists.”

Shah noted that Congress would not be able to intervene if a safe-listed nation followed Turkey’s path under the CLOUD Act.

The Supreme Court did not tackle the merits of the CLOUD Act in its 3-page opinion Tuesday, which dismisses the case against Microsoft for lack of live controversy.

“The case is remanded to the United States Court of Appeals for the Second Circuit with instructions first to vacate the District Court’s contempt finding and its denial of Microsoft’s motion to quash, then to direct the District Court to dismiss the case as moot,” the unsigned opinion concludes.

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