Policy

In Supreme Court Privacy Case, Lawmakers Side With Microsoft

Lawmakers are asking the Supreme Court to clarify a data privacy law. (CQ Roll Call file photo)

Five lawmakers told the Supreme Court on Thursday that Congress didn’t intend for an electronic privacy law to authorize the government’s seizure of data overseas and say interpreting it differently could have “dangerous repercussions” for future legislating.

The group’s brief backs tech giant Microsoft in a dispute with the United States about whether email service providers must comply with warrants even if data is stored outside of the country — in this case in Dublin, Ireland.

The case being argued next month could have major implications for privacy in the digital age, and the outcome will depend heavily on interpreting what Congress intended with the 1986 law about electronic communications.

The lawmakers — Sen. Orrin G. Hatch, R-Utah; Sen. Chris Coons, D-Del.; Rep. Doug Collins, R-Ga.; Rep. Darrell Issa, R-Calif.; and Rep. Hakeem Jeffries, D-N.Y. — warn the justices that Congress ordinarily intends for its acts to apply only within the United States.

The government is wrong to argue that the law authorized the seizure of data stored in another country, the lawmakers wrote. They say the complex and consequential policy considerations about how that affects law enforcement and national security are best left to Congress, not the courts.

The group says there is growing bipartisan support for bills they introduced or backed to set out how a warrant can be used to access data stored overseas, and “whether and to what extent such a procedure should be authorized is a prerogative reserved to Congress.”

Twisting the law, titled the Stored Communications Act, to apply in this Microsoft case “not only would precipitate international discord and jeopardize weighty privacy and economic interests, but it would also augur significant negative consequences for Congress’s future lawmaking,” the lawmaker brief states.

The way courts defer to Congress on whether and in what circumstances federal law should reach beyond the nation’s borders is called the “presumption of extraterritoriality.”

“Congress depends on the presumption against extraterritoriality to avoid unintended consequences and to have confidence concerning when and where its laws will be applied,” the lawmaker brief states.

Microsoft, in its brief in the case, echoes many of the same themes and puts Congress’ intent back in 1986 squarely in the middle of the debate. The company says “in enacting a statute to restrict law-enforcement access to personal communications, Congress never suggested that it was expanding the Government’s power to seize them.”

“There are many reasons Congress might stop short of granting the full power the Government seeks: It would instigate a global free-for-all, inviting foreign governments to reciprocate by unilaterally seizing U.S. citizens’ private correspondence from computers in the United States,” Microsoft’s brief states.

“And it would offend foreign sovereigns. And — especially given foreign governments’ and businesses’ sensitivities in the wake of recent revelations about the U.S. Government’s surveillance practices — it would jeopardize U.S. technology companies’ position atop the $250 billion cloud-computing industry.”

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