“Such a decision would allow foreign countries to search your files in the United States if the company storing them happens to have an office in that country”, he said.
The Second Circuit ruling has already made it hard for the U.S.to comply with data requests from other nations, the government’s attorney Michael Dreeben said.
The Justice Department had no immediate reaction to the court ruling.
Foreign companies are poised to supplant US companies if they are viewed as unreliable guardians of data, said Smith, who also is chief legal officer at Microsoft, the Redmond, Washington, giant that develops and sells computer software and services, such as cloud computing. Microsoft argues data physically stored in another country falls outside of the DOJ’s jurisdiction, even if an employee in the U.S.is the one getting the data.
Chief Justice John Roberts was relatively unsympathetic to the company’s plight.
Microsoft argues that laws have not caught up to modern computing infrastructure and it should not hand over data stored internationally.
Both sides of the case seemed to agree that data has real physical characteristics and moves along physical cables that pass through real territories that might have an interest in it. “I suspect the government doesn’t care”. And Roberts later expressed concern that email providers could attract customers by assuring them that their emails would be stored overseas, beyond the reach of the USA government.
Justice Samuel Alito wondered if the ephemeral nature of digital content should come into play. “We protect information stored within the United States, and we don’t actually care whose information it is because we have laws that guard the information for everyone”.
A ruling for Microsoft might also incentivize tech companies to purposely store US customers’ data outside the country as a service to customers who want to evade USA warrants, Chief Justice John Roberts anxious. He was joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor. It ordered a new round of arguments after Trump’s conservative appointee Neil Gorsuch joined the bench previous year.
“I said then that we’d persist with this case all the way to the Supreme Court, if that were necessary”.
A federal magistrate judge in NY granted the government’s request to issue a warrant for the data under the 1986 federal law, the Stored Communications Act.
Mr. Dreeben said the focus of the statute was on a company’s ability to obtain data with the click of a mouse in the United States. “They’re going to Redmond, Washington, and saying you have to turn this over to us. If Congress wants to regulate this ‘Brave New World, ‘ let them do it”, Ginsburg said. And the case Microsoft has been engaged in has been rumbling along for over four years already.
The court avoided resolving other issues raised by the plaintiffs, throwing the case back to the lower courts to decide if the immigration law being challenged is constitutional.
They could conduct illegal business via email in the United States with the assurance their messages would remain safe and off-limits to USA investigators because they were held in Canada or Ireland, Roberts reasoned.
And on Tuesday, the Supreme Court’s conservative majority sided with the government in a narrow ruling: The justices did not rule that detained immigrants have no right to bond hearings under the Constitution; rather, they merely ruled that immigrants had no such rights under federal immigration law. Justice Elena Kagan did not take part in deciding the case.
Breyer stated in his dissent that two-thirds of asylum seekers and almost 40 percent of those with criminal convictions go on to be granted the right to stay in the United States.
Will at least four other justices be more open to Breyer’s “practical” solution?
A ruling is due by the end of June.