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Thursday, March 1, 2018

US Supreme Court Hears Arguments in Microsoft-Ireland Case

On February 27, the US Supreme Court heard oral arguments in United States v. Microsoft Corp., where the issue is court-described as “whether a United States provider of email services must comply with a probable-cause-based warrant…by making disclosure in the United States of electronic communications within that provider's control, even if the provider has decided to store that material abroad.”  Legal proceedings began in 2013 when Microsoft challenged a warrant by law enforcement issued under the 1986 Stored Communications Act to turn over email of a target account that was stored in Ireland, a position that was upheld by the US Court of Appeals for the Second Circuit in 2016.  Dozens of amicus briefs in the case were filed by tech companies, industry associations, advocacy groups, scholars, legislators on both sides of the Atlantic, EU member states, the European Commission and attorney generals in 35 US states.

According to a report by Reuters, Supreme Court justices appeared to be divided during the hearing, with some, like Roberts and Alito, expressing sympathy for the government’s position and others, like Ginsburg and Sotomayor, questioning whether the court should act given that Congress is considering bipartisan legislation to resolve the issue.  A more extended analysis in the Lawfare blog suggests that a decision is unlikely to be made along ideological lines, that current Congressional deliberation on the CLOUD Act may be very influential, and that issues relating to sovereignty of foreign nations and global responses to any definitive ruling were only partially addressed.  A ruling in the case is expected in June.

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