Nicolas Guibert de Bruet, Attorney at Law and Technology Consultant Blog Entry

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Microsoft Advocates In Court For Privacy And The Sovereignty Of Nations

Tuesday, February 27, 2018, at 23:19.

Recently, the U.S. Supreme Court heard arguments in U.S. v. Microsoft, which tests whether the 1986 Stored Communications Act applies to data stored abroad. The case arose when Microsoft refused the U.S. government request to turn over emails stored on a server in Ireland. The government argued that the law focuses on the disclosure of data relevant to an investigation involving U.S. actors in the United States. Microsoft argued instead that the law focuses on securing the data and that the law does not apply extraterritorially, because Congress did not explicitly state so in the law.

The government's position is risky on at least two precedential fronts:
1) if the Supreme Court does not follow previous rulings that U.S. law applies only domestically, unless explicitly stated otherwise, then the Court risks creating international anarchy. Other nations will also start to pass extraterritorial laws of their own, ignoring an ingrained legal tradition of international comity and deference to each country's sovereignty. It may create situations where U.S. citizens will unwittingly break all kinds of foreign laws without even leaving the U.S.

2) if the Supreme Court decides to interpret the Stored Communications Act in a way that breathes cloud technology into Congressional intent of the past, where none existed before, then the Court will send the message that privacy rights are not important enough to deserve the gauntlet of Congressional consensus. The Court should strictly construe the Act and exhort Congress to amend the law to take into account recent technological developments, such as cloud computing. The Supreme Court's legislative toolset is blunt and usually indiscriminate, whereas Congress can nimbly create a legal framework that addresses the government's investigative concerns, but still respects privacy rights.

Does anybody remember the previous U.S. v. Microsoft case (D.C. Circuit, 2001), where the U.S. accused Microsoft of violating the 1890 Sherman Act when it alleged that Microsoft engaged in anti-competitive behavior? It created a lot of damaging publicity for the company. How times have changed.

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