Businesses leaders expressed surprise that the Department of Justice (DOJ) is appealing a case about when law enforcement should have access to data stored in other countries.
The case pits the DOJ against Microsoft over an issue both sides have indicated requires a legislative fix: whether or not a domestic warrant can require a company to retrieve data stored on a foreign server. Both chambers of Congress had taken up the issue with hearings involving the DOJ, industry and other stakeholders, and both chambers had expressed a sense of urgency to resolve the conflict.
"That's why we were surprised," said Patrick Forrest, vice president and deputy general counsel for the National Association of Manufacturers. "It does seem so clear that in this case, the Congress must speak."
"We expected them not to appeal," he added.
The DOJ filed paperwork for the appeal on Friday.
The government is appealing lower court rulings that law enforcement cannot obtain data stored in a foreign nation with a warrant. Rather, the ruling says law enforcement needs to follow the foreign nation's policies for searching and seizing evidence. This has long been the case with physical evidence and the United States has several treaties known as Mutual Legal Assistance Treaties (MLATs) to provide a diplomatic apparatus to request evidence be retrieved and sent stateside.
Microsoft argued that those treaties should be followed when the DOJ requested a user's emails stored on a server in Ireland.
The DOJ argued that the search and seizure really takes place in the United States, where a computer operator would retrieve the data.
Law enforcement officials are hesitant to accept any solution that requires MLATs because it is a notoriously inefficient process that can take months to years to retrieve evidence.
Businesses are wary of the DOJ's approach because it could force companies to violate foreign laws protecting data on servers to abide by American laws.
"It is a particularly unjust position for the United States government to put businesses in," Forrest said.
A legislative fix is not only in the best interest of businesses, noted Aaron Cooper, vice president of global policy at The Software Alliance, otherwise known as the BSA.
"If the DOJ case is accepted and the DOJ wins, you put everyone in a bad situation," he said.
"Other countries will follow the United States' lead. We don't want to turn over data to countries without a U.S. level of probable cause."
Both chambers of Congress have been active in developing a legislative fix.
Sen. Orrin HatchOrrin Grant HatchLobbying world Congress, stop holding 'Dreamers' hostage Drug prices are declining amid inflation fears MORE (R-Utah) proposed legislation to resolve the issue last year and again last month.
“I’m disappointed by the Department’s decision to seek Supreme Court review of the Microsoft warrant case. As I’ve said all along, courts should respect the time-honored principle that warrants stop at the water’s edge. Nevertheless, Congress can and should modernize data privacy laws to ensure that law enforcement can access evidence in a timely manner," Hatch said in a statement.
Industry members, including Google and Microsoft, have proposed an international system of expedited evidence sharing between countries that agree to certain human and civil rights baselines.
They also stress that this is not an issue of preventing law enforcement from having access, only, as Cooper put it, "about developing a framework where we know what rules to follow."
"The question is not whether to give law enforcement all the tools it needs, it's whether the DOJ is going to cut off our nose to spite our face and force businesses to act against MLATs just because it's the easiest way to get what they want," said Forrest.