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Supreme Court asked to rule on reach of email warrants under SCA

The Stored Communications Act was passed as Title II of the Electronic Communications Privacy Act of 1986, long before the possibility of cloud computing was even on the horizon. In general, it addresses the government's ability to compel the disclosure of "stored wire and electronic communications and transactional records."

More particularly, it is a law the federal government often uses to obtain the emails of people it is investigating. Recently, however, a dispute with Microsoft resulted in an appeal to the U.S. Supreme Court.

The high court hasn't yet announced whether it will take the case, but the hearing could result in either an expansion or curtailment of the law's reach.

The dispute arose in regards to a drug trafficking case. In 2013, federal agents got a warrant for a Microsoft email account they suspected was being used for that purpose. However, Microsoft was only willing to turn over the emails and identifying information requested as long as they were stored in the United States -- and much of the information the feds were after was stored on servers in Ireland.

A federal appeals court in New York ruled that the Stored Communications Act is a U.S. law doesn't apply outside the United States. The Trump Administration pointed out that Microsoft doesn't have to travel abroad to retrieve the stored emails; it can get hold of them with a few clicks of a computer mouse.

Moreover, the administration argues that potentially hundreds or thousands of criminal investigations will be put on hold if U.S. warrants cannot compel the retrieval of emails from outside the U.S. It appealed to the Supreme Court

In a blog post after the appeal was filed, Microsoft's president argued that applying U.S. warrants on foreign soil "would put businesses in impossible conflict-of-law situations and hurt the security, jobs, and personal rights of Americans."

Who is in the best position to resolve the issue?

As one legal scholar points out, Microsoft and other technology companies are in an unusually powerful position when the law is unclear -- and the Stored Communications Act is certainly outdated. Tech firms get to decide "what to retain, where to keep it, for how long, and whether to encrypt it," along with whether to resist government orders that seem overbroad from the companies' point of view.

Yet asking the Supreme Court to clarify the meaning of a 1986 law may not be the most productive way forward. Courts aren't meant to make nuanced policy decisions.

The best move may be what one of the federal appellate judges suggested: "congressional action to revise a badly outdated statute."

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Supreme Court asked to rule on reach of email warrants under SCA | Anthony M. Salerno, P.C.