• by Jess Nelson , October 17, 2017

The United States Supreme Court agreed Monday to hear arguments in a major digital privacy case that may decide whether a U.S. warrant extends to emails stored overseas.

The case originates from a 2013 dispute between Microsoft and the Department of Justice over emails linked to a drug-trafficking case.

U.S. prosecutors demanded all emails related to the case, and Microsoft handed over all information that had been stored on servers in the United States, abiding by the 1986 Electronic Communications Privacy Act (ECPA).

The ECPA is the law that currently governs digital communication in the United States, including email messages. The antiquated legislation -- now over thirty years old -- was passed before the rise of cloud-based storage and decrees that any communication over 180 days old can be seized by law enforcement with a subpoena. A subpoena can be issued by a government agency and does not require a Judge’s signature, or proof of guilt.

The ECPA does not address communication stored overseas, and some emails pertaining to the 2013 case were stored on Microsoft servers in Ireland. Microsoft sued to block the warrant, arguing that the seizure of evidence held in another country by U.S. authorities could set a dangerous precedent. If that were to occur, what would stop foreign governments form doing the same thing to companies with data stored in the United States? 

A U.S. District Judge first ruled in favor of the Department of Justice in 2014, but then the U.S. Court of Appeals for the 2nd Circuit in New York reversed the order to rule in Microsoft’s favor. Now the case is headed to the Supreme Court, with the Justices expected to hear arguments in June.

The Center for Democracy & Technology (CDT) has filed briefs in support of Microsoft’s position, arguing that digital privacy should be addressed by Congress and not decided by the courts. Proposed bills to reform the Electronic Communications Act have garnered widespread bipartisan support in Congress over the past few years, but a law has never come to fruition.