Reflections on the Microsoft/Ireland Case

Last week the Supreme Court granted a review of a Second Circuit decision upholding Microsoft’s defiance of a U.S. warrant for the production of e-mail messages, stored in a server housed in Ireland, of a man suspected of drug trafficking.

At its simplest, the legal battle between Microsoft and law enforcement is a debate over the reach and intent of a law passed many years (1986) before the coming of age of the Internet.

Microsoft and its allies argue that that law, the Stored Communications Act (SCA), was written at a time when Congress knew virtually nothing about the Internet and what it would become, and that furthermore there is no indication in the language of the law or congressional intent that suggests it could be applied extraterritorially.

The Justice Department and its allies dismiss this argument as unpersuasive given the importance that attaches to their mission to keep the country safe from law breakers and worse. More than this, Justice avers that, while the server housing the subject e-mail may be located in Ireland, the owner of that server, Microsoft, is located in the United States and could provide the email “with the click of a mouse.”

Though it’s an imperfect parallel, aspects of this case resemble the government’s eventually withdrawn attempt to oblige Apple to write code as would allow the FBI to gain access to information on an iPhone in connection with another criminal case.

Both cases are, or were, marked by disputes over matters of fact and law, by charges of governmental overreach, and by concerns, on the part of the tech companies, that if the government were to prevail it would damage their pledges of privacy to their users.

So the stage is now set for a test, first in the Court, and perhaps in Congress, of an impasse that leaves Microsoft between the rock of U.S. law enforcement and the hard place of both the users it serves and the sovereign laws of other nations.

As too with the Apple case, where the FBI found its own way of getting into the iPhone in question, it’s not as though there aren’t any workarounds to getting the e-mail law enforcement wants from Microsoft. For one thing there is the Mutual Legal Assistance Treaty (MLAT) between the USA and Ireland that provides for the sharing of information in criminal cases. It is noteworthy that in an amicus brief filed before the Second Circuit, Ireland plainly said it would proceed with dispatch to gather this information if it were asked. (It was not.)

All of this leads many commenters, including two of the Second Circuit judges and Microsoft itself, to recommend that Congress permanently settle this matter through an update of the SCA. As it happens, just such legislation, called the International Communications Privacy Act (ICPA), has already been introduced in the House and Senate, and should the Supreme Court rule in favor of Microsoft, ICPA may find a freshening breeze in its sails.

But there may be a problem that has not been much discussed with this approach. For reasons that are complex and variegated, the bloom has suddenly come off the rose of the tech industry, as both liberals and conservatives, Republicans and Democrats, are souring on it. The liberals think companies like Google and Facebook have gotten too big, while the conservatives are upset by Silicon Valley’s all-but-monolithic liberalism.

The erosion of support among Republicans and conservatives is probably the bigger problem in the context of the Microsoft imbroglio and ICPA since they tend to be much more sympathetic to law enforcement than are the Democrats and liberals.

So the view from here is that the best outcome for now would be a Microsoft victory in the Court, followed by a nuanced legislative effort aimed at attracting the support of both wings of the two political parties.

Patrick Maines is President of The Media Institute.