In a 4-4 split, the Second Circuit Court of Appeals declined Tuesday to reconsider a watershed decision limiting the ability of law enforcement to request data stored on foreign servers.
The earlier ruling had found Microsoft did not have to provide emails stored in Ireland in response to a domestic warrant. Microsoft had argued it was bound to abide by the law of Ireland and that the Department of Justice should have requested the evidence through the United States’ treaty with Ireland to provide assistance whenever needed evidence was on foreign soil.
“It is for just this sort of reason that the government has entered into [mutual legal assistance treaties] with other sovereigns: to address mutual needs for law enforcement while respecting sovereign borders,” wrote Judge Susan L. Carney in her concurrence of the decision issued Tuesday morning.
“And it is for just this sort of reason that the government has in other circumstances taken a position, somewhat in tension with the one it takes here, that courts should be particularly solicitous of sovereignty concerns when authorizing data to be collected in the United States but drawn from within the boundaries of a foreign nation.”
The Microsoft case concerned a warrant in a drug case issued under the Stored Communications Act (SCA), which many on Capitol Hill and in the Department of Justice have argued is archaic.
The Department of Justice had argued that, in modern cloud file storage, data transfers across national borders without a user’s knowledge — sometimes without even a provider’s knowledge. Since the data was accessible by Microsoft within the United States, that should be where the warrant was served.
In a speech in December, Assistant Attorney General Leslie Caldwell argued that policymakers needed to clear up problems with the SCA and other issues to keep up with changing technology.
“These decisions must be made in the policy arena, not by the private sector alone,” she said. “We cannot allow changing technologies or the economic interests of the private sector to overwhelm larger policy issues relating to the needs of public safety and national security.”
In their statement today applauding the court's decision, Microsoft President and Chief Legal Officer Brad Smith agreed that legal reforms are necessary.
“We need Congress to modernize the law both to keep people safe and ensure that governments everywhere respect each other’s borders. This decision puts the focus where it belongs, on Congress passing a law for the future rather than litigation about an outdated statute from the past," he said.