Supremes To Hear Challenge To 2nd Circuit E-Mail Decision

The Supreme Court has agreed to weigh in on whether U.S. law enforcement officials can compel U.S. companies--in this particular case Microsoft--to turn over data of foreign citizens stored overseas.

Justice had sought the appeal of a Second Circuit Court of Appeals decision that the U.S. could not issue warrants for such data. The court had held that because Microsoft stored some e-mails in Ireland, it made them immune from warrants because they were "impermissibly extraterritorial" and said the decision affected both public safety and national security. Justice said the case had  frustrated investigations into child trafficking and other "serious federal crimes."

ACTD-The App Association was not happy with the Supreme Court's decision to grant a hearing. That Supreme Court decision comes against a backdrop of continued Hill debate over legislation clarifying access to data stored abroad, which was one reason ACT said the Supremes should have let the Second Circuit decision stand.

It also comes amidst a running debate in Washington over the tension between protecting privacy and getting the bad guys.

"Granting law enforcement access to foreign citizens’ data stored overseas would allow other nations to demand the same access to U.S. citizens’ data, even when that data is stored within the United States," said ACT. "This environment could complicate the free flow of data on which so many American businesses depend.  Congress must act, or else American companies will continue to face challenges and missed opportunities when presented with legal ambiguities in requests for data stored abroad...We need Congressional action now more than ever."

The Supreme Court does not explain why the Justices have chosen to hear an appeal, simply listing the petitions that are granted and those that are denied.

A bipartisan quartet of House members last month reintroduced the International Communications Privacy Act (ICPA, HR 3718), which would clarify the rights and limitations on law enforcement accessing electronic communications stored abroad.

Microsoft President Brad Smith also wants Congress to step in. "“The continued reliance on a law passed in 1986 will neither keep people safe nor protect people’s rights," he blogged of the decision Monday. "If U.S. law enforcement can obtain the emails of foreigners stored outside the United States, what’s to stop the government of another country from getting your emails even though they are located in the United States?

"We challenged the warrant that resulted in this ligation because we believed U.S. search warrants shouldn’t reach over borders to seize the emails of people who live outside the United States and whose emails are stored outside the United States," he said, and added a plug for ICPA: "ICPA provides sensible ways for cross-border data access, including a robust legal process to access the email of Americans and notification of foreign countries, when required under international law."

John Eggerton

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.