The Supreme Court Should Exercise Judicial Restraint in Microsoft Data Case
In an op-ed published Sunday in The Hill, following the Supreme Court's announcement that it will review the Second Circuit's decision in United States v. Microsoft, CFJ director of public policy Ashley Baker writes that "[g]iven the absence of a division among the lower courts, the justices’ decision to review this issue signals that they consider it a very important one," and points out that "[w]hile a lot of the press coverage has portrayed U.S. v. Microsoft as a case about email privacy, the central questions in this case concern matters of foreign sovereignty and the extraterritoriality of American laws."
Noting that "[w]hat's at stake is the ability of U.S.-based tech companies to continue to service their customers using servers and other resources located around the world," Baker explains that "[b]y asserting jurisdiction over electronic data stored anywhere in the world, governments will undermine consumers' trust in the cloud and threaten the very foundation of the huge and growing cloud computing industry."
Since the Supreme Court has long held that federal statutes only have domestic application unless Congress expressly provides otherwise, Baker writes that:
"In deciding United States v. Microsoft, the Supreme Court should be particularly cognizant of the potential for judicial overreach. The Second Circuit understood that it was not its duty to speculate whether Congress, decades ago, would have wanted this particular statute to apply to data stored overseas. The justices should reach the same conclusion and issue a narrow ruling while making it clear that the job of updating the ECPA is rightfully left to Congress."
Baker concludes that "[w]ith high court decisions looming in both Microsoft and Carpenter v. United States, another important digital age case, Congress would be wise to act now and pass [the International Communications Privacy Act (ICPA) of 2017]. The Supreme Court is the wrong forum for updating American law to reflect the rise of cloud computing."