Location appeared to be the key Tuesday as the Supreme Court debated whether tech giant Microsoft has to turn over email records stored overseas to the government as part of a criminal investigation.
The issue pits digital privacy against the needs of law enforcement in a case being watched around the globe.
In oral arguments, the justices appeared ready to give the Trump Justice Department a legal victory, with some on the bench saying while the information may be archived on cloud servers in Ireland, a computer operator at company headquarters in Washington state could easily retrieve the digital material and turn it over to authorities.
“It seems to me that the government might have a strong position that the statute focuses on disclosure” of the records, said Chief Justice John Roberts. “And disclosure takes place in Washington, not in Ireland.”
But others worried a 1986 law the government used to request the information was inadequate for current privacy concerns.
“No one ever heard of clouds. This kind of storage didn’t exist” three-decades ago, said Justice Ruth Bader Ginsburg. “So 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, it should do it.”
The justices as a group seemed to be grasping for a compromise that might allow government access to global email storage, while giving greater weight to the sovereignty concerns raised by other nations.
“I recognize we have a difficult statute here,” said Justice Anthony Kennedy.
The electronic communications were requested in 2013 by federal agents conducting a drug trafficking investigation in New York. The warrant sought “all emails” in a Microsoft customer’s webmail account.
A federal magistrate concluded the government had “probable cause” to seek the information, under the 32-year-old federal Stored Communications Act.
Microsoft balked at the request, insisting that because the data was on a server in Dublin, the government could not make such an “extraterritorial” demand. The company also said it was up to Congress to update the old law to make it applicable to current technology.
A federal appeals court had sided with Microsoft.
In Tuesday’s arguments, Trump administration attorney Michael Dreeben said this was strictly about “domestic conduct,” since the suspects and service providers were both U.S. based.
He argued a judicial loss here would hamper law enforcement’s ability to obtain electronic information involving a range of crimes, including fraud and terrorism, where time might be critical to thwart a potential imminent national security threat.
Microsoft attorney Joshua Rosenkranz faced tough questioning after saying other governments may seek to unilaterally seize emails stored inside the U.S. And he said with so many unanswered questions about the sovereignty of data, U.S. courts should tread carefully.
“If you try to tinker with this, without the tools that only Congress has, you are as likely to break the cloud as you are to fix it,” said Rosenkranz.
Justice Stephen Breyer said instead of a blanket refusal, the company could make case-by-case objections to data requests, depending on where the servers might be located.
“Microsoft goes to the magistrate and says, look, there’s a problem here because of the law of other countries, and the magistrate takes that into account,” he said. “And then maybe Congress will pass this and we’ll have standards in it and it’ll be much more helpful. What’s wrong with that?”
A number of European government officials, international trade groups and privacy advocates are backing Microsoft.
Several members of the court — whose average age is about 67 years — have publicly admitted their grasp of ever-evolving technology is a work in progress.
When Rosenkranz said sophisticated robots can currently access, scan and retrieve the digital evidence requested, Justice Sonia Sotomayor expressed mock alarm.
“I guess my imagination is running wild,” she said, to courtroom laughter.
The case is U.S. v. Microsoft (17-2). A ruling is expected by early summer.