The Supreme Court will hear an important privacy case next month, one that has major corporations, tech companies, even Congress and some foreign governments, facing off against an impatient Department of Justice. The case has highlighted the fact that our laws can’t keep pace with how we do business.
As most cases that have reached the Supreme Court, this one has been brewing for a while. In 2013, Microsoft opposed a warrant issued for emails the company stored in Ireland. As the emails were outside of the U.S., the company claimed that the DOJ lacked jurisdiction.
“Hundreds of organizations signed 23 amicus briefs supporting Microsoft yesterday,” Gizmodo writes, “displaying broad support for the company’s position that, under current law, the DOJ must seek access to the emails through a treaty process with Ireland, not a warrant issued under the Electronic Communications Privacy Act.”
“On Thursday, 289 different groups and individuals from 37 countries signed 23 different legal briefs supporting Microsoft’s position that Congress never gave law enforcement the power to ignore treaties and breach Ireland’s sovereignty in this way,” Microsoft’s president and chief legal officer Brad Smith wrote in a statement. “How could it? The government relies on a law that was enacted in 1986, before anyone conceived of cloud computing.”
The way companies work globally has made matters like this far more common. There is a clear path for making such requests, but they take time. As such, members of Congress have also weighed in. “A bipartisan group of lawmakers, led by Sen. Orrin Hatch, also filed a brief in support of Microsoft,” GIzmodo notes, “asking the Supreme Court to allow Congress to craft new legislation to govern law enforcement access to data stored overseas.”
“As I’ve long said, the question of whether and when law enforcement’s authority should reach overseas is a policy question for Congress, not the courts,” Hatch said. “I urge the Court to allow my colleagues and me to complete our work rather than rendering a decision that will upend legislative efforts and create substantial problems for service providers and their customers.”
The DOJ is understandably frustrated by the delays. Even if Congress were to make the new legislation a priority, they rarely work quickly.
“Ultimately the courts—including the Supreme Court—can decide only whether the DOJ’s approach passes muster under current law,” Microsoft’s president said, defending his company’s position. “That’s a blunt instrument. The courts are not able to write a new law. Under our Constitution, only Congress can do that, using its tools to craft a nuanced solution that balances all the competing concerns by enacting a statute for the 21st century.”