Digital Liberty in the Cloud Computing Era

The recent decision by the United States Second Court of Appeals in the case of Matter of Warrant to Search a Certain E–Mail Account Controlled & Maintained by Microsoft Corp., 829 F.3d 197 (2d Cir. 2016) (hereinafter "Microsoft case") has triggered an avalanche of rhetoric and a maelstrom of hyperbole-laden proclamations of anti-law and order invective – much of it hysterical in nature.

The case concerned a warrant issued pursuant to a criminal narcotics investigation of a customer of Microsoft directed to Microsoft pursuant to the Stored Communications Act ("SCA"), 18 USCA § 2703(a).  Microsoft complied with the warrant as it related to data resident in the United States but properly refused to do so as regarded documents resident in its Dublin, Ireland datacenter because warrants by and large do not have extraterritorial applications, as mandated by the Federal Rules of Criminal Procedure, Rule 41.  Although the case facts are unclear, it appears that the target of the investigation likely did not reside in the United States because Microsoft generally stores information at a datacenter nearest the customer's stated location – in this instance, Dublin.  The United States magistrate for the Eastern District of New York denied Microsoft's Motion to Quash the warrant, and the United States District Court enforced the warrant and held Microsoft in contempt.  Microsoft thereafter appealed to the Second Circuit Court of Appeals ("Second Circuit").

The prevailing wisdom seems to be that the Second Circuit failed to recognize the impact of modern technology upon the hidebound world of "The Law" and rendered an incomplete decision that fashioned another stumbling block to fetter law enforcement while enabling criminals a safe haven.  The writings center upon the perceived failure to consider the distinction between information ephemerally stored "in the cloud" that consists of electronic pulses translatable to stored and readable information that can be accessed anywhere on the planet, in theory, as opposed to "traditional" documentary evidence that has a corporeal, physical existence that can be seen and touched only where it exists and is stored or kept.

To the contrary, the Second Circuit got it right. The Microsoft case was decided correctly and should be applauded universally for preserving the rule of law in light of the aggressive overreach of executive power.

Microsoft is an electronic communication service provider based in the United States with global reach, through its MSN email services – as are Google, Yahoo, and EarthLink, to name a few.  There is no question that the law at issue, the SCA, 18 USCA § 2703(a), exists to protect the innocent and preserve the privacy of the citizenry and not to assist law enforcement.  The simple essence of the Second Circuit's decision is that the SCA does not have extraterritorial application to enforce the required warrant from a United States state or federal law enforcement entity as regards "the disclosure by a provider of electronic communication service of the contents of a wire or electronic communication, that is in electronic storage in an electronic communications system."  The SCA pointedly refers to the Federal Rules of Criminal Procedure, which in turn limit its jurisdiction to the United States and its territories.

Congress fully understood what it was doing and purposefully worded the SCA to require a warrant, which compels production of documents and materials in the physical custody of the party upon whom the warrant is served, as opposed to a subpoena, which requires that any and all documents merely in the control of the subpoenaed party shall be produced.  The warrant seeks what you have on hand; the subpoena seeks what you can get your hands on.  Had Microsoft been served with a subpoena, the offshore records would be required to be produced.  However, Congress specifically forbade the use of subpoena powers in the circumstances presented in the Microsoft case, although the SCA contains provisions that expressly permit trial and grand jury subpoenas under enumerated circumstances.  The reason warrants were required in lieu of subpoenas was expressly to protect privacy.

Law enforcement, like Congress, is well aware of the distinction between a warrant and a subpoena.  Congress, unlike law enforcement and the Executive Branch in general, also understands that the law is a hedge against executive tyranny, not a bulwark against societal activities that, as the argument goes, may someday beget lawlessness and anarchy.  The executive in general and the police authorities in particular are unconcerned with anything other than winning the "war on drugs," the "war on crime," the "war on unregistered guns," and other "us against them" manufactured public relations jargon "wars" designed to minimize the rights of individuals and further government's perceived jobs and vocation.  They just want to win.

As in any contest, in which the struggle is deified and the cause deemed breathlessly just, the ends come to justify the means, and every advantage is taken, rendering the rules optional.  In these scenarios, a referee (here the Courts) must step in to make sure the rules are abided by and the contest is fair.  Sadly, the act of bringing the executive to heel to preserve fairness and individual rights is becoming rarer each passing day – but that is the subject of other articles for other days.

Here, the rules are neither mutable nor cryptic.  Seasoned attorneys, both civil and criminal, who practice international law are well aware of discovery methods peculiar to obtaining evidence from a foreign national.  The Justice Department attempted to shortcut the established rules and procedures in the Microsoft case and was properly rebuffed.  There can be no doubt that in the Microsoft case scenario, the Justice Department, utilizing brilliant advocacy and strategic thinking in its quest for victory, purposefully positioned itself to cheat the procedural restrictions of the SCA and secure an undue advantage in violation of individual's rights that deviated from the accepted norms of discovery pursuant to the Federal Rules of Criminal Procedure and other applicable law.  Traditionally, letters rogatory have been used to obtain discovery from a foreign citizen through the intercession of a foreign court that assists in obtaining evidence from its citizen for the use in a United States legal action.  The obverse, whereby United States courts assist foreign tribunals, is codified in 28 USC §1782.

Additionally, Mutual Legal Assistance Treaties (MLATs) are negotiated by the State Department for the exchange of evidence and information in criminal and related matters with foreign nations. These treaties are the primary mechanism whereby cooperation with nations is facilitated and sovereignty is respected in accordance with international law and the Constitution, specifically Article II, Section 2.  Note that two thirds of the Senate must concur.  Thusly, the Founding Fathers established the Treaty Powers Clause in recognition of the serious matters at issue in the Microsoft case that the Executive Branch endeavored to circumvent.

The Second Circuit panel should be applauded as striking a blow for individual rights and liberty.  The United States Supreme Court should deny certiorari review, as the Microsoft case presents neither a conflict of law in the Circuits nor a matter of great national importance.  The law is the law, and the executive was rebuffed in its continuing efforts to deny liberty reserved to the people.  It is important that individual rights are not eroded.

The singular reason the United States Supreme Court should hear the case is to affirm the Second Circuit and bolster the liberty-centered concept that the personal privacy rights of individuals extends into the digital world and that modernity does not defeat the inalienable rights of the individual.  As such, the recent decision in Riley v. California, 573 U.S. ____, 134 S.Ct. 2473 (2014), is predicted to be an impediment to the government's hopes to overrule the Second Circuit in the Microsoft case.

The Supreme Court surely must know that it is fundamentally important that individual rights are not further eroded because of technological advances alone.  That personal privacy rights of individuals extends into the digital world and other future methods of communication must be recognized as an essential aspect of preservation of the Constitution and the individual rights and liberties of the people.

Further, it critical that the decision in the Microsoft case be upheld so that the United States continues to be seen as a beacon of liberty and individual rights worldwide.  Protection of individual rights against the Crown is America's birthright and its legacy.  The concept of liberty is in our DNA.  The reality of liberty in a world deemed dangerous is much more problematic, requiring vigilance and disabuse of jingoistic efforts to inculcate fear in furtherance of surveillance and intrusion into our individual and collective privacy.  As stated by Hayek in paraphrasing Benjamin Franklin, "[t]hose who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety."

It is only fitting that the nation that invented the internet would also lead the way in making a place where liberty, privacy, and individual rights are recognized, respected, and preserved.  We must do no less.  We all owe a debt to Microsoft and its extraordinarily talented and vigilant legal department for their part in exposing this extraordinary imposition against individual rights and liberties.

One can only imagine the potential harm to the nation's economy and global security if Microsoft hadn't stepped forward with the courage, foresight, and ability – financial and intellectual – to defeat this example of Executive Branch overreach.  If warrants of this nature are routinely, albeit unlawfully, enforced, then surely other nations will hasten to retaliate against U.S. citizens, and a free-for-all of retaliatory data disclosure would result because the internet is truly worldwide.  If the rapacious aggression of the Justice Department stands unfettered and unchecked by the judiciary (including the Supreme Court, if necessary), the ability of Microsoft, Google, Yahoo, and other American internet and data service providers to compete worldwide will assuredly evaporate.

There can be little doubt that imposition of the state's police powers into the personal lives of private citizens is an extraordinary action that is not to be taken lightly and only in extreme cases, when the societal good or individual safety are at risk.  The Founding Fathers brilliantly and painstakingly crafted the Constitution to provide a masterful balance between individual rights and the need for public safety, mindful of the ancient urge of the executive to glom onto as much power as possible and use it without hindrance on the weakened society it seeks to control.  The principle is enshrined in the Ninth Amendment to the Constitution – "the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."  Thusly, the federal government is intended to be a government of express and limited powers, and all rights and powers not delegated to it are retained by the people and, as set forth in the companion Tenth Amendment, by the individual states.

The alternative is submission to the militarized surveillance police state that threatens our liberty, our solvency, and our national identity.  When there is a conflict, liberty prevails, and the Executive Branch must stand down.  This fact must hold true even when international law is implicated as in the Microsoft case decision.  The Constitution compels no less, and the Founding Fathers expected no more.

W. Bruce DelValle is a litigator and founding member of the Washington, D.C. constitutional law, commercial, and civil litigation firm Fein & DelValle PLLC.  He is a native Texan who grew up on the Gulf Coast of Florida.  DelValle graduated from Penn State University and worked as a nuclear engineer prior to attending law school at Washington and Lee School of Law.