There are good reasons why warrants issued by one country don’t apply in another. The laws and legal standards differ from country to country, which leads to conflicts. Such conflicts, if they arise in natural circumstances, are usually resolved through diplomacy. They aren’t best handled by the business community.
Indeed, Microsoft’s president points out that attempting to enforce U.S.-based warrants in foreign countries “would put businesses in impossible conflict-of-law situations and hurt the security, jobs, and personal rights of Americans.”
Sometimes, unfortunately, the evidence federal agents are after is located in “the cloud,” which typically means on offshore servers. If a legitimate warrant is issued for an email account, should it matter if the information is stored on a server in Silicon Valley or the Shenandoah Valley in Britain?
These questions arose in connection to a 2013 drug trafficking case that has already been heard by the Second Circuit Court of Appeals — and may be heard by the U.S. Supreme Court. In that case, federal agents relied on a 1986 law called the Stored Communications Act to secure a warrant for the contents of a Microsoft email account.
1986 Stored Communications Act ‘badly outdated’
That law was passed long before the cloud existed, at a time when no one had imagined emails being stored abroad. It simply doesn’t cover the situation.
In this case, federal agents served a warrant on Microsoft demanding identifying information and stored emails from a Microsoft account they believed was being used for drug trafficking. Microsoft was willing to comply until it discovered the information in question was stored on servers in Ireland.
At that point, it refused to comply. On appeal, a panel of judges agreed that a warrant based on the Stored Communications Act did not apply abroad because the outdated law doesn’t address such a situation.
One of the judges even called for “congressional action to revise a badly outdated statute.”
In the meantime, the government says, “hundreds if not thousands of investigations of crimes — ranging from terrorism, to child pornography, to fraud” are at risk. Late last month, the Trump Administration asked the U.S. Supreme Court to intervene.
Legal scholars say that Congress, not the courts, should be revising outdated laws. “The Supreme Court can’t answer these questions in the nuanced way that’s needed,” said an American University law professor interviewed by the Associated Press.
As the situation stands, we’re leaving private companies like Microsoft in charge of some major policy issues, the law professor said. They are deciding “what to retain, where to keep it, for how long, and whether to encrypt it,” as well as “when to comply and when to resist” government orders.