The Microsoft-Ireland Case: A Supreme Court Preface to the Congressional Debate

Article/Op-Ed in Lawfare
Feb. 22, 2018

OTI's Sharon Bradford Franklin wrote for Lawfare on the Microsoft-Ireland case and the question of cross-border access to data:

"In our interconnected world, the electronic data that we create may be stored far away from us, without regard for national boundaries. If our data become relevant to legitimate law enforcement investigations, the borderless nature of digital data can create obstacles for government investigators and the tech companies who receive government requests for their customers’ electronic data. Yet, efforts to overcome these barriers must address the tension between the needs of law enforcement and the rights of individuals. How can the law facilitate government requests for digital data without sacrificing privacy and human rights?

On Feb. 27, the Supreme Court will hear oral argument in United States v. Microsoft (or, the Microsoft-Ireland case). The case involves the U.S. government’s efforts to obtain electronic communications stored by Microsoft on a server in Ireland. The court must decide whether a warrant issued under Section 2703(a) of the Stored Communications Act to compel production of electronic communications can apply outside the United States. An amicus brief—filed by New America’s Open Technology Institute (OTI) and a broad coalition of rights organizations and trade associations—supports Microsoft and suggests that the answer is no. However, the case also implicates broad and complex policy questions that should be addressed through multi-stakeholder engagement in Congress."