SCOTUS Dismisses US v. Microsoft: Courts lack policy expertise, democratic mandate to update the SCA
The following is the statement of Committee for Justice president Curt Levey on the Supreme Court's dismissal of United States v. Microsoft:
Washington, D.C. — We welcome the Supreme Court's decision dismissing United States v. Microsoft in light of Congress's passage of the CLOUD Act (Clarifying Lawful Overseas Use of Data). The case, stemming from Microsoft's challenge to a federal search warrant compelling it to turn over the contents of emails stored on a server abroad, was one of the Court's most closely watched this term.
The dismissal is the final step in Microsoft's successful legal challenge, which was aimed at prompting Congress to update the badly outdated governing statute, the 1986 Stored Communications Act (SCA). The SCA was enacted long before anyone envisioned the increasing importance of the cloud, in which our personal data – email, photos, and the like – is stored on servers around the world.
Congress responded positively to the legal challenge by passing the bipartisan CLOUD Act, which provides what Microsoft said it was looking for in its brief to the Justices: an updated statute that would "strike a new, 21st-century balance between law-enforcement interests, our relations with foreign nations, the privacy of our citizens, and the competitiveness of our technology industry."
As we have pointed out, the alternative to the CLOUD Act would have been to force the Supreme Court to modernize the SCA itself, despite the fact that courts lack the policy expertise, global perspective, and democratic mandate to do so adequately.
Instead, the CLOUD Act enacted by Congress last month creates a comprehensive legal and political framework governing how law enforcement agencies in the U.S. and abroad can access data across borders in their efforts to combat crime and terrorism in the age of cloud computing. It includes many privacy protections and facilitates bilateral agreements with other nations, thus encouraging the government-to-government cooperation necessary to fight international crime.
We urge the Trump Administration to make the negotiation of these bilateral agreements a top priority.