United States v. Microsoft

January 17, 2018 • Legal Briefs
By Jim Harper, Berin Szóka, Manuel S. Klausner, Ilya Shapiro, Trevor Burrus, & Reilly Stephens

People use email for many things: collaborate at work, catch up with old friends, share baby pictures, or, sometimes, to coordinate the operations of an international narcotics trafficking ring. The federal government believes certain Microsoft‐​hosted email accounts were used for this last purpose and is demanding Microsoft provide them access to the communications stored within.

The Stored Communications Act (SCA) governs federal law enforcement’s authority to search email and other electronic records. They must obtain a warrant, subject to constraints similar to those imposed by the Fourth Amendment, and then provide an opportunity for the target company (e.g. Microsoft here) to contest the warrant.

Microsoft chose to contest the warrant in this case on the ground that the emails in question are stored on servers in Ireland, arguing that federal law enforcement may not claim jurisdiction over the entire globe. The federal government argues that the happenstance of the server’s location is invisible to the user, who, while sitting in his apartment in Manhattan (or wherever), is oblivious to whether his email server is in Galway or Yonkers. Because this is an important and recurring question, the Supreme Court decided to step in and sort the matter out.

To assist the court in sorting through the difficult legal questions in the case, Cato has filed an amicus brief, joining the Competitive Enterprise Institute, TechFreedom, the Reason Foundation, the Individual Rights Foundation, and the American Consumer Institute Center for Citizen Research. The brief focuses on elucidating the ways in which the Fourth Amendment and the SCA interact with modern technology. We argue that the law is increasingly, and correctly, recognizing that personal data belongs to the individual, much like the “houses, papers, and effects” mentioned in the text of the Fourth Amendment. Digital communications are different than physical things, of course, but the Terms of Service between Microsoft and its customers recognize the users’ property interests in the data. Therefore, while the warrant procedure under the SCA deviates slightly from the normal process, it nonetheless should be examined with the same rigor as a traditional warrant, and that means the traditional presumption against extraterritorial application should be respected in this case. Finally, we argue that concerns over gamesmanship—for example, American companies stashing their servers in Zanzibar to aid and abet criminality—can be more prudently addressed with other tools. The Court should affirm that the right of people to be secure in their papers and effects has not been abrogated by modern technology, and that the long arm of the law shall not extend across all oceans without express authorization from the legislature.

About the Authors
Berin Szóka
Manuel S. Klausner
Ilya Shapiro

Ilya Shapiro is the director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute and publisher of the Cato Supreme Court Review.

Trevor Burrus

Research Fellow, Robert A. Levy Center for Constitutional Studies