• by Ray Schultz , Columnist, March 5, 2018

Is Microsoft headed for a defeat in the U.S. Supreme Court? That seems to be the consensus of reporters who covered the oral arguments in the case of the United States vs. Microsoft last week.

The conservatives appeared to sympathize with the government’s position that Microsoft must disclose emails needed in a drug investigation that are stored in the cloud in Ireland. This would be required under the 1986 Stored Communications Act.  

A review of the transcript supports that conservative skew. For example, Chief Justice John Roberts said, “The statute focuses on disclosure. And disclosure takes place in Washington, not in Ireland.”

Justice Samuel Alito seemed to agree. “It would be good if Congress enacted legislation that modernized this, but in the interim, something has to be done.”

Even the usual swing voter, Justice Anthony Kennedy, asked: “Why should we have a binary choice between a focus on the location of the data and the location of the disclosure? Aren't there some other factors, where the owner of the e-mail lives or where the service provider has its headquarters?”

There were detailed discussions of where and how warrants and subpoenas apply (and we wonder how the late Justice Scalia would have weighed in on this). And Justice Sandra Sotomayor noted that the existing law is based on "a past technology, old concept.” But in the end, politics aside, it may come down to how well the Justices grasp that technology. Are what they said was not encouraging.

Alito raised the hypothetical case of an American citizen being investigated for crimes. The government has probable cause that there is evidence in the emails.

“But the provider has chosen to store the data overseas and, in fact, in some instances, has actually broken it up into shards so that it's stored not just in one foreign country but in a number of foreign countries,” Alito said. “Now what happens in that situation?”

E. Joshua Rosenkranz, attorney for Microsoft, responded: "No one actually breaks up the e-mail into shards, certainly not in this case."

"Well, we were told that that's what Gmail does. That's not correct?"

"No, Your Honor."

Then there was this exchange between Rosenkranz and Justice Sotomayor. She admitted, “perhaps it's my technological ignorance. How is it in a locked box? If I'm trying to mentally imagine this, what has to happen? You know, I press a button in the U.S. and it accesses directly the information in Ireland, or does something have to happen in Ireland?

MR. ROSENKRANZ: Something has to happen in Ireland. These e-mails, Justice Sotomayor, exist only in Ireland. And what happens in -- and it exists in a four -­-

JUSTICE KENNEDY: Something has to happen electronically or with human intervention?

MR. ROSENKRANZ: No -- no human intervention -- there's a human --­

JUSTICE KENNEDY: So someway you push the button in Washington?

MR. ROSENKRANZ: Yes.

JUSTICE KENNEDY: Then, obviously, something happens in Ireland on the computer. But does some person have to be there?

MR. ROSENKRANZ: A human being doesn't have to do it. It is a robot. And if you --­ if you sent a robot into a foreign land to seize evidence, it would certainly implicate foreign interests. And so if the DEA -- just let me just draw out this example.

JUSTICE SOTOMAYOR: I -- I'm sorry, I'm -- I'm now -- I guess my imagination is running wild.

(Laughter).

Let’s hope that these nine superior intellects get it straight before June.