After a panel of federal judges ruled that the 1986 Stored Communications Act does not apply outside the United States, the Trump Administration asked the U.S. Supreme Court to intervene.
The issue arose in relation to a 2013 drug trafficking case. Federal investigators had sought emails and identifying information from a Microsoft email address they believed was being used to traffic drugs. Microsoft apparently agreed to comply with the warrant until it was discovered that many of the emails in question were stored in servers in Ireland.
Microsoft asked the Second Circuit Court of Appeals to block the warrant, and the court agreed that the Stored Communications Act could not be enforced abroad.
The administration has asked the Supreme Court to overrule that court, pointing out that the emails might technically be in Ireland but that Microsoft could retrieve them essentially with the click of a mouse. It also told the court that “hundreds if not thousands of investigations of crimes — ranging from terrorism, to child pornography, to fraud” were at risk if the Second Circuit’s decision is left in place.
The Supreme Court has not yet agreed to hear the case — that decision won’t be announced until fall. However, it may be that the nation’s highest court isn’t the best forum to resolve the dispute.
Experts say Congress needs to rewrite the 1986 law
The question of whether people can keep emails private — or secret from the U.S. government — if those emails are abroad is thorny. The answer could affect both Americans and foreigners, and it might affect activity that has no connection to the United States.
Without a high-level appellate ruling urging them to the contrary, technology companies have become reluctant to comply with government data requests. This has been increasingly the case since former National Security Agency contractor Edward Snowden leaked information about the scope of America’s surveillance activity, according to an American University law professor interviewed by the Associated Press.
The professor went on to say that technology companies are currently in the position of deciding “what to retain, where to keep it, for how long, and whether to encrypt it,” along with whether to comply with or resist government orders to turn over information that people feel is private.
Putting private companies in the position of privacy watchdogs may not be ideal, but the courts aren’t in a position to make nuanced policy judgments. That’s the role of the legislature.
One of the judges on the Second Circuit has panel called for Congress to take action on the “badly outdated statute.” Efforts have been made, but no progress has occurred so far.