Justices Debate Waiting for Congress in Privacy Case

Several lawmakers have filed legislation to address pending Microsoft case

(Bill Clark/CQ Roll Call file photo)
(Bill Clark/CQ Roll Call file photo)
Posted February 27, 2018 at 1:19pm

Three Supreme Court justices on Tuesday pondered waiting for Congress to pass a new privacy law to resolve a major case about whether email service providers must comply with warrants even if data is stored outside the United States.

During oral arguments that pitted tech giant Microsoft against the government, Justices Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor asked why Congress wasn’t better suited to resolving the dispute.

The government is seeking emails from Microsoft that are physically stored in Ireland as part of a drug investigation involving a customer’s webmail account. A ruling is expected before the term ends in June.

“Wouldn’t it be wiser just to say let’s leave things as they are, and if Congress wants to regulate in this brave new world, it can do it?” Ginsburg said.

Several times the justices mentioned pending legislation to address some of these issues. Republican Sen. Orrin G. Hatch of Utah, a sponsor of the Senate bill, sat near the front of the courtroom for the arguments.

Hatch had filed a brief in the case — along with bill co-sponsors Sen. Chris Coons and Rep. Hakeem Jeffries, both Democrats, and Republican Reps. Doug Collins and Darrell Issa — that argued the complex and consequential policy considerations affecting law enforcement and national security are best left to Congress. Hatch and Collins have also introduced other legislation on the issue.

The case could have major implications for privacy in the digital age, and the arguments focused heavily on interpreting what Congress intended in a 1986 law about electronic communications. The justices grappled Tuesday with how to apply the law, which includes provisions on storage of electronic communications, to the modern phenomenon of cloud computing.

“I recognize we have a difficult statute here,” Justice Anthony M. Kennedy said at one point.

Sotomayor pointed out that Congress wrote the law in much different technological times and that the government was asking the justices to “imagine what Congress would have done or intended in a totally different situation today.”

“Why shouldn’t we leave the status quo as it is and let Congress pass a bill in this new age?” Sotomayor said.

Michael Dreeben, the deputy solicitor general arguing on behalf of the United States, responded that the bills haven’t been marked up, voted on or passed Congress, let alone become law. As it stands, different parts of the country now have different legal standards about whether the government can compel the disclosure of such information stored overseas, Dreeben said.

Dreeben argued that the 1986 law authorized the seizure of data stored in another country, and the Supreme Court should “decide cases based on law as it exists rather than wait for an uncertain legislative process.”

Breyer said “perhaps there’s agreement, we’ll see, about what should be done, and this new law proposes that,” making a hand gesture toward Hatch as he delivered the line.

Justice Samuel A. Alito Jr. expressed concern about waiting for Congress, saying “it would be good if Congress enacted legislation that modernized this, but in the interim, something has to be done.”

Later in the arguments, Chief Justice John G. Roberts Jr. said that a ruling for Microsoft could hinder government investigations. That could allow companies to store their emails outside the United States and advertise to consumers that their communications would be outside the reach of the federal government, even if the email was “from here to the next block,” Roberts said.

The attorney arguing for Microsoft, Joshua Rosenkranz, said the broad topics discussed during the 60 minute argument — foreign laws, the future of computing, the fate of the tech sector — “are all questions Congress can answer.”

“You’re as likely to break the cloud as to fix it,” Rosenkranz told the justices.

Hatch, in a statement issued after the argument, said the questions raised at the Supreme Court underscore the role of Congress.

“It’s no surprise that throughout this morning’s oral argument, Justices continually referred to the importance of action from Congress, and the CLOUD Act in particular, in settling the question of when and where law enforcement can compel disclosure of data stored abroad,” Hatch said.

The case is United States v. Microsoft, Docket No. 17-2.