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US Supreme Court to review Microsoft email privacy case

17 October 2017

The case hinges on whether a US warrant can compel American companies to turn over data stored on servers outside the United States.

Disputes between leading tech companies and the Justice Department have become increasingly common, and the case will give the Supreme Court an opportunity to weigh in on the clash between the demands of law enforcement and the companies' desire to shield the information they collect to protect their customers' privacy. Microsoft challenged the warrant in 2014, arguing that prosecutors could not force it to hand over its customer's emails stored overseas.

The case began in 2013, when USA prosecutors got a warrant to access emails in a drug trafficking investigation. A lower court ruled a year ago that it did does not, meaning that the Justice Department needs to follow the same procedures used to obtain physical evidence stored outside the United States. The full 2nd Circuit split on whether to rehear the case.

Microsoft Corp., began in 2013 when a NY judge issued a search warrant seeking records and emails from a Microsoft account in a case connected with a criminal investigation.

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The Supreme Court has twice in recent years ruled on major cases concerning how criminal law applies to new technology, on each occasion ruling against law enforcement.

In court papers, Bloomberg reports, USA deputy solicitor general Jeffrey Wall said: "Under [Microsoft's] opinion, hundreds if not thousands of investigations of crimes... ranging from terrorism, to child pornography, to fraud... are being or will be hampered by the government's inability to obtain electronic evidence".

"Execution of a USA warrant to seize documents in a foreign country is precisely the kind of foreign incursion that the presumption against extraterritoriality was created to prohibit, absent clear authorization by Congress", Microsoft said. With so many USA tech companies serving foreign countries, a ruling would have a global impact. If domestic disclosure warrants cannot be served on the foreign servers of United States companies, US law enforcement can lean on treaties with the country that the servers are based in.

A ruling in the DOJ's favor could dissuade customers from using cloud services.

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In 2010, the Justice Department and 17 states sued several credit card companies, saying that their steering practices had violated the antitrust laws.

The Justice Department said in its appeal that the lower court ruling "gravely threatens public safety and national security" because it limits the government's ability to "ward off terrorism and similar national security threats and to investigate and prosecute crimes". The US Court of Appeals for the Second Circuit found against the Government on this issue.

Adam Liptak is a New York Times writer.

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US Supreme Court to review Microsoft email privacy case