Privacy Paradox

Final Pre-Argument Thoughts on the Microsoft Case

By Orin Kerr
Friday, February 23, 2018, 5:21 PM

I have blogged a lot over the last two years on the pending case of United States v. Microsoft, the case on whether Microsoft must comply with a search warrant for foreign-stored e-mails. With oral argument scheduled for next Tuesday, I thought I would add a few final thoughts before we finally get a sense of where the Justices might be.

(1) The briefing in this case is exceedingly weird.  As I explained in glorious detail back in November, the big problem in the case is that the parties are debating the wrong law.  Whether Microsoft must assist with the execution of a search warrant is an issue under the All Writs Act, not the Stored Communications Act (SCA).  The SCA just requires the government to have a search warrant before providers can hand over e-mail.  That was a huge deal in 1986 because Congress understandably assumed after Smith v. Maryland, 442 U.S. 735 (1979), that the Fourth Amendment probably didn't impose the same requirement.  Here the government has a warrant, which is all that the SCA requires if it applies. As a result, the parties are arguing about a statute that has nothing to do with the issue in the case.   (I should add that Jen Daskal disagreed with my view; I explained why I am not persuaded by her approach in this Twitter thread.)

The result is that the briefing in the case has an almost metaphysical quality.  Because the briefs incorrectly assume that Microsoft only has to comply with the warrant if the SCA applies, the parties end up analyzing very weird questions:  For example, where on the Internet is privacy?  Where is the "focus" of a law that was designed to require a warrant when the government already has a warant?  What are the alternative ways of obtaining foreign-stored e-mail if a warrant can't be used, based purely on guesses and instinct and no actual caselaw? It's a very odd set of questions to ponder, and it's set up by the parties' briefing the case under the wrong law.

(2) I had considered writing an amicus brief in Microsoft along the lines of my November blog post to flag the issue for the Justices, but I decided against it mostly for a practical reason. Even in the extremely unlikely event that the Justices would turn directions in the case because of this problem, Microsoft is only a statutory case.  It demands a clear answer one way or the other.  And a clear answer under the wrong statute is still a clear answer.  Cf. Burnet v. Coronado Oil & Gas Co., 285 U.S. 393 (1932) (Brandeis, J., dissenting) ("[I]n most matters, it is more important that the applicable rule of law be settled than that it be settled right.").   And besides, an amicus brief would have been due around the time I was moving to California.  Talk about bad timing. So I figured I would sit back and just watch this one rather than participate.

(3) However the Justices decide the case, I hope they don't think of Microsoft as a Fourth Amendment case.  Microsoft is a statutory dispute involving a statute that was enacted because the Fourth Amendment itself was suspected  not to apply.  As I wrote back in 2004 in A User's Guide to the Stored Communications Act, the SCA reflected the understanding in 1986 that Internet architecture would likely thwart Fourth Amendment protection.  It therefore "creates a set of Fourth Amendment-like privacy protections by statute, regulating the relationship between government investigators and service providers in possession of users' private information."  Whatever the SCA means, I don't think it is answered by modern interpretations of the Fourth Amendment.

To be sure, there are fascinating Fourth Amendment issues raised by the facts of Microsoft.   I go into great detail on those issues in The Fourth Amendment and the Global Internet, 67 Stan. L. Rev. 286 (2015).  Questions include, who has Fourth Amendment rights online?  When a government agent copies information online in one country, and then zips it to another country where it is opened, where has the search or seizure occurred?  And if there are different standards of reasonableness in different countries, as lower court caselaw has held, what standards of reasonableness should apply to a copy made in one country and a disclosure made in another country? 

These are great question that I attempted to answer in my article.  But they're just not raised by the Microsoft case, as it's only a statutory case.  The briefing sometimes looks to the Fourth Amendment, perhaps in part because the statutory focus involves the wrong statute.  At least the Fourth Amendment is the correct amendment.  But even so, I hope the Justices realize Microsoft is purely a statutory case.

(Cross-posted at the Volokh Conspiracy)