DOJ Seeks to Dismiss Microsoft Case With Data Access Implications
The Supreme Court should dismiss U.S. v. Microsoft as moot because the Clarifying Lawful Overseas Use of Data Act answers questions about police access to data abroad, DOJ filed Friday (see 1802270052). With inclusion of the Cloud Act (see 1802140062) in the omnibus spending bill, Microsoft no longer has any basis to suggest a warrant is impermissibly extraterritorial, DOJ argued. The agency applied for a new warrant under the law, which a magistrate judge issued Friday. The government is now “unquestionably entitled” to require Microsoft to disclose foreign-stored data under the Stored Communications Act, DOJ argued.
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Don Baker, an attorney representing the U.K. government, said Microsoft reportedly refused to concede the act moots the case. Microsoft didn’t comment. “DOJ has done the sensible thing of abandoning its original warrant, which Microsoft hasn't complied with, and issuing a new warrant," Baker said. "Its motion should prevail.” DOJ and Microsoft supported the Cloud Act during the legislative process.
Senior Counsel Greg Nojeim of Center for Democracy & Technology, which opposed the now-law over human rights and privacy concerns, said DOJ’s request to vacate the case would eliminate legal precedents established by lower courts. CDT is troubled that the administration is trying to “wipe off the legal map” determinations by the lower courts by seeking to vacate decisions after the circumstances on which they are based have changed, Nojeim said: “This case could, instead, simply be dismissed as moot, rather than being entirely vacated as the government has proposed.”
Nojeim agreed questions about extraterritorial application of U.S. warrants were answered by the act, but how the court moots the case will be important. DOJ’s filing notes the circuit court made “sweeping statements about recipients of disclosure orders who store the communications of third parties, suggesting that such entities ‘seize’ information within their control ‘as an agent of the government.’” That’s "an important question whether an entity that acts pursuant to an order from the government to disclose data is acting as an agent of the government,” Nojeim said.
Software & Information Industry Association, which backed passage, agrees with Justice the legislation provides a better avenue to address data access issues than the top court potentially issuing a “lose-lose decision,” said Senior Director-Public Policy David LeDuc. Regardless of Microsoft’s response to the latest warrant, there's a better process in place because of the act, he said, and SIIA expects the Supreme Court to ultimately dismiss the case. “Based on the oral argument, they seemed to recognize the challenges," LeDuc said. "Now that there is a new law in place, I think Supreme Court justices and others in the legal system have recognized very clearly that Congress needed to solve this, and they have.”