FOR IMMEDIATE RELEASE
The following is the statement of Committee for Justice president Curt Levey on United States v. Microsoft, argued before the United States Supreme Court today:
Washington, D.C. — For many decades, the American people and our courts have given great deference to the judgment and credibility of federal law enforcement, even if they were suspicious of other government bureaucracies. But that enhanced level of trust may be diminishing after a series of FBI controversies involving the FISA court, the Hillary Clinton investigation, and the recent Florida school shooting.
As a result, the Justices may be less deferential this morning when the Justice Department argues that its crime fighters cannot effectively do their job unless they are permitted to compel companies like Microsoft to turn over our emails and other personal data even when stored on servers outside the United States (Ireland in this case). The DOJ will concomitantly argue that the 1986 Stored Communications Act (SCA) permits such warrants.
Aside from the FBI's recent problems, the Supreme Court should be skeptical of the Justice Department's arguments in this case because they are contrary to legal precedent and don't give enough regard to the long-term relationships between American and foreign law enforcement that are vital in the fight against terrorism, drug trafficking and other international crime.
If sanctioned by the Court, the Justice Department's decision to serve Microsoft with a warrant – rather than using the existing international treaty structure to get the data from Irish law enforcement – threatens the current regime of effective cooperation among the world's law enforcement agencies. The result is likely to be unilateralism, which also harms America's global tech companies by forcing them into the no-win situation of satisfying conflicting legal regimes.
Because the job of the courts is to interpret the law and not rewrite it, the Justices should be wary of DOJ's argument for reading extraterritorial reach into a 1986 statute that did not address and could not have anticipated law enforcement's reach across the sea to seize data stored in the cloud.
Court precedent calling for a presumption against such extraterritoriality should be enough to decide the case. But now that we've learned not to put the FBI on a pedestal, the Court has an additional reason to reject the expansive interpretation of the SCA the government seeks.
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