Imagine that you are back in the mid-1980s.  Most people’s knowledge of computers comes from the movie Wargames.  Some larger business and universities had computer networks with employees having work stations, but home computing was just beginning.  Apple had just introduced the McIntosh, but, if you used a Microsoft operating system, you were using MS-DOS.  Additionally, your home computer used a dial-up modem if you wanted to communicate with other computers.  To communicate with another computer, you needed to know the phone number for that computer’s modem.  (If you were just searching to see what was out there, there were techniques and programs known to hackers to find other computers and save those numbers for later use.)  A pre-internet existed through “bulletin board systems” which allowed the posting of messages and downloading and uploading information through that system.

It was in this era that Congress passed the Stored Communications Act of 1986 as Title II of the Electronic Communications Privacy Act of 1986.  While there have been some minor changes since 1986, the core provisions of that Act (codified as Sections 2701 through Section 2712 of Title 18 of the United States Code) are essentially the same as they were in 1986.

While most of the provisions of the Stored Communications Act protects the rights of those who use electronic communications, some of the sections (including Section 2703) establish the procedure by which the government can obtain stored communications when needed for a criminal investigation.  The procedures recognize that these communications might be stored in another state and require companies to honor warrants issued in the state in which prosecutors need access to those communications.

On February 27, the Supreme Court will hear arguments in United States v. Microsoft.  There is no question in Microsoft about the validity of the warrant obtained by the United States.  Instead, the dispute between the parties concern what communications are covered by the Stored Communications Act.  The dispute reflects how much the world has changes since 1986 while the statute has not.

As noted above, in 1986, most of these communications were sent to and through bulletin board systems.  Almost all of these bulletin board systems were based in the United States and stored their information on servers in the United States.  Today, most of the major internet service provides and e-mail services are multi-nationals with servers located in many countries.   In “choosing” where a particular communication is stored, the present location of any data is based on the need of the service providers.  Some companies even split one communication among multiple servers.  While, for the most part, a communication is stored at a location close to the sender or recipient, that is not always the case.

In Microsoft, the communication at issue is apparently stored on a server in Ireland.  The company takes the position that ,because the communication is stored in Ireland, the federal government needs to work with the Republic of Ireland under Irish and European Union law to obtain the information.  The federal government, while generally agreeing that U.S. law does not extend to activities in other countries, disputes that this particular communication is not “within the United States” for the purposes of American law.  The federal government’s basic position is that there are three ways that a communication can be within the U.S. for a Stored Communications Act warrant:  1) if it originated within the U.S.; 2) if the recipient was within the U.S.; and 3) if the company storing the communication could access its servers from within the U.S.  Aside from its legal arguments within this case, Microsoft (and other service providers who have filed briefs supporting Microsoft) is concerned about being caught between the U.S. government’s demand for the data and the “host” country’s laws protecting customers which could lead to inconsistent legal obligations.  The host country’s laws do not necessarily give “better” protections to privacy than U.S. law but simply require different steps.  And the need to coordinate internationally means that the host country will always have an easier time accessing the data than prosecutors from other countries.

From a law enforcement perspective, while a particular prosecutor’s office might only make a Stored Communications Act request once or twice a month (in a larger jurisdiction), the cases involving such requests tend to be among the most serious cases.  (For example, it is likely that such a request has been made in the recent Florida shootings to find any posts or e-mails that the shooter may have sent concerning his plans or explaining his motivation.)  Any delay created by the need to send a request through a foreign country (even a friendly country that wants to cooperate) could hinder an on-going investigation and lead to a suspect staying at-large to commit new offenses while law enforcement waits for the request to go through diplomatic channels.

Needless to say, the Stored Communications Act is silent about the possibility that “American” data could be stored in another country by the service provider.  In the face of this silence, the Supreme Court will have to decide what data qualifies as “American” data that is subject to the reach of federal law.  The simple solution to this issue would be for Congress to amend the Stored Communications Act to expressly define what the reach of the warrant provision is.  While there are proposals that would address this issue pending in Congress, the odds of a legislative solution to this issue are slim and none.  And, of course, Microsoft (and other service providers) and law enforcement agencies need to know what the rules are now under existing law until such time as Congress provides an answer.

Which brings us back to the beginning — a Supreme Court having to decide how the principles and rules established to operate and regulate electronic communications as they existed in the 1980s applies to the very different world of 2018.  There is no absolute right answer and any attempt to fathom the “intent” of President Reagan and the Congress that passed it is a fool’s errand or an attempt to legitimize one’s own policy preferences.  One can complain about judicial activism in general, but there is no way for the Supreme Court (or any lower court which has to decide whether a service provider has to comply with a Stored Communications warrant) to decide this issue without engaging in judicial activism — whether that activism favors the government or the service provider.  The courts have no option other than to make a policy choice (admittedly one that does implicate some traditional legal principles, but principles that are somewhat in conflict in this circumstance) because the legislature has proven unable to make that policy choice.