WASHINGTON (CN) - The Supreme Court agreed Monday to decide whether a law that predates the modern internet allows U.S. prosecutors to seize Microsoft emails abroad.
Unlike the strict warrant requirements to which physical records are subject, the warrant-subpoena hybrid of the 1986 Stored Communications Act allows prosecutors to sidestep certain Fourth Amendment protections.
Invoking this law last year for a narcotics investigation, a federal judge in New York directed Microsoft to let the U.S. government access the emails, associations, identifying information and contacts on a certain suspect who was a customer of Microsoft.
Microsoft, which houses such information on its servers in Dublin, Ireland, said the order threatened its business model, the sovereignty of other nations and the ability of tech companies to offer secure products to their users.
The government took the case to the Supreme Court after the Second Circuit reversed, finding the Stored Communications Act outdated and ill-equipped to protect modern privacy interests.
“Three decades ago, international boundaries were not so routinely crossed as they are today, when service providers rely on worldwide networks of hardware to satisfy users’ 21st-century demands for access and speed and their related, evolving expectations of privacy,” U.S. Circuit Judge Susan Carney wrote for the unanimous court in July 2016.
Six months later the Manhattan court refused 9-4 to hold an en banc rehearing on the case.
“We recognize at the same time that in many ways the SCA has been left behind by technology,” Carney wrote in a 14-page opinion explaining the order. “It is overdue for a congressional revision that would continue to protect privacy but would more effectively balance concerns of international comity with law enforcement needs and service provider obligations in the global context in which this case arose.”
Typically, seizures crossing national boundaries require diplomatic channels known as mutual legal assistance treaties (MLATs). Carney noted that doing an end-run around this process would invite other countries to do the same to U.S. citizens.
“With a less anachronistic statute or with a more flexible armature for interpreting questions of a statute’s extraterritoriality, we might well reach a result that better reconciles the interests of law enforcement, privacy, and international comity,” the opinion states.
Per its custom, the Supreme Court did not issue any comment Monday in agreeing to take up the case.
Noel Francisco will argue for the U.S. Solicitor General’s Office, with Microsoft represented by E. Joshua Rosenkranz of Orrick, Herrington & Sutcliffe.
Vermont and several other states have intervened in the case as well.
Blogging about the development Monday, Microsoft President and Chief Legal Officer Brad Smith repeated his call for Congress to modernize the Stored Communications Act.