How Much of Our Liberty Will SCOTUS Take Away in the Microsoft Case?

"If it ain't broke, don't fix it," a phrase coined by Bert Lance, the much maligned director of the Office of Management and Budget for the equally slandered Carter administration, has become a mantra for well advised inaction since 1976.

This phrase is recalled by the recent oral argument before the United States Supreme Court for the Second United States Court of Appeals decision in the case of United States v. Microsoft Corp (hereinafter "Microsoft case"), a hotly anticipated event featuring numerous intriguing questions from the justices and a theatrical atmosphere bolstered by the presence of U.S. senator Orrin Hatch (R-Utah) sitting in the front row.  Senator Hatch has introduced new bipartisan legislation to "fix" access to electronic evidence: the Clarifying Lawful Overseas Use of Data Act of 2018 ("CLOUD Act").  This legislation, strenuously urged by the Department of Justice ("DOJ"), hinges on the concept that formal intra-governmental cooperation is the optimal solution to address international privacy concerns and conflicting foreign law in the Digital Age, while eroding extant privacy and liberty protections.

The question of whether the theater, the pending legislative furor, and the law-and-order-hysterics should have any resonance with the Court is answered "no."  Upon close scrutiny, nothing is "broke," and there is nothing to "fix".

The case concerns the Stored Communications Act ("SCA"), 18 USCA §2703(a), as it relates to a warrant for digitally stored (e.g., computer) documents issued pursuant to a criminal narcotics investigation of a Microsoft customer.  Microsoft is an electronic communication service provider based in the United States with global reach through its MSN email services.  There is no question that the SCA exists to protect constitutional rights and not to assist law enforcement.  The SCA unambiguously limits jurisdiction to the United States and its territories.  Microsoft properly and lawfully refused to comply with the warrant seeking information for a drug investigation from its Dublin, Ireland data center because warrants generally have no extra-territorial applications as mandated by the Federal Rules of Criminal Procedure Rule 41(b)(5).

The DOJ's primary argument is that the Courts have fashioned another stumbling block to fetter law enforcement while providing criminals with a safe haven.  The DOJ's insistence that the Second Circuit failed to consider the distinction between information ephemerally stored "in the cloud" and "traditional" documentary evidence is specious. Stored data has a real corporeal existence and an actual physical location.

            Congress fully understood what it was doing and purposefully worded the SCA to require a warrant in lieu of subpoenas to protect privacy.  Law enforcement, like Congress, is well aware of the distinction between a warrant and a subpoena.  As in any contest, in which the struggle is deified and the cause breathlessly deemed just, the ends come to justify the means, and every advantage is taken rendering the rules optional without a referee.  In these scenarios, a referee (here the Supreme Court) must step in to make sure the rules are abided by and the contest is fair.  

Although much talk has been made regarding the CLOUD Act, the existing rules at issue in this dispute are neither mutable nor cryptic.  Traditionally, discovery is obtained from a foreign citizen through the intercession of a foreign court that assists in obtaining evidence from its citizen for use in a U.S. legal action.  Correspondingly, U.S. courts are involved to assist foreign tribunal litigants, as required in 28 USC §1782.

Mutual Legal Assistance Treaties (MLATs) negotiated by the State Department also provide 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.  Thusly, the Founding Fathers established the Treaty Powers Clause, requiring the approval of two thirds of the Senate, in recognition of the serious international sovereignty matters at issue.  The DOJ complains that the MLAT process is too slow and cumbersome, but, had the DOJ followed the rules and the law, it would have years ago obtained the information it claims was urgently required.

The DOJ's ham-fisted approach infringes on the sovereignty of other countries and risks a significant conflict of law between friendly nations.  If our government ignores the sovereign rights of the citizens of other nations, reciprocation is neither surprising nor avoidable.  U.S. companies are the world leaders in cloud computing and data storage.  This leadership is based solely on the concept of trust – the trust to safeguard and protect.  If global customers believe that the U.S. government can unilaterally take information from American companies' data centers, that trust will evaporate – without regard to superior technology.  If the rapacious aggression of the Justice Department stands unchecked, the ability of American internet- and data service-providers to compete worldwide will assuredly disappear forever.

Wholesale submission to the militarized surveillance police state threatens our liberty, our solvency, and our national identity.  When there is a conflict, liberty prevails, and the Executive Branch must stand down.  This inalienable fact holds true even when international law is implicated.  The presumption must be that individual liberty is primary and should not be shriveled when confronted with a routine drug investigation, of which there are literally tens of thousands at any given moment of any given day.

To summarize, the Second Circuit got it right and should be applauded universally for preserving the rule of law in light of the aggressive overreach of executive power.  The existing SCA statutory scheme provides the framework required to resolve these matters, such that new or additional legislation may be superfluous, or worse yet, retrogressive to established privacy protections and individual liberty interests.  The suggestion that the DOJ will abandon the Supreme Court appeal should the CLOUD Act be enacted raises red flags.  One must be exceedingly wary of the motives of the DOJ and even the CLOUD Act itself if the DOJ finds comfort with its terms.  This is especially true as regards the DOJ's historic degradation of individual liberty when in conflict with the DOJ's purely prosecutorial motives. It is not Congress's duty to disregard the Constitution to make the DOJ's job simpler.

The Microsoft case, standing alone, presents no need for the CLOUD Act to exist. The Federal Rules of Criminal Procedure and the treaty system, while sometimes cumbersome and requiring deftness, is nonetheless robust and unbroken. The solution exists, and there is no need for a "fix" that advantages the government and harms the people.

Modernization of the "unbroken" SCA via the CLOUD Act is superfluous and to be eyed warily. What is required is acute vision and the Court's supremely steady hand at the tiller to navigate these perilous straits, past the rocks of law-and-order expedience and pervasive fear by a power-drunk and out-of-control Executive Branch, through the shallows of empire, which threatens our republic. Let us all hope the Supreme Court is up to the task and that Bert Lance's admonition advises their deliberations.