DOJ Asks Supreme Court To Dump Microsoft Case, Let It Use New CLOUD Act To Demand Overseas Data

Legal Issues

from the sighs-and-eyerolling-from-DOJ-counsel dept

As expected, the DOJ has asked the Supreme Court to toss the Microsoft case. The appeal sitting before the court deals with collecting data overseas using US-issued warrants, rather than mutual assistance treaties. As the DOJ argues in its motion to vacate [PDF], the passage of the CLOUD Act — stapled to the tail end of 2,200-page budget bill — makes this argument moot. For all intents and purposes, the new law (which apparently still has no effective date) grants the government the power to demand production of data stored overseas by US companies using a regular magistrate’s warrant.

The motion goes further than just asking the Supreme Court to drop the case. It also takes some time to complain about Microsoft inconveniencing the DOJ by forcing it to acquire another warrant for the same info under the newly-granted authority. The DOJ, despite its apparent compliance with Microsoft’s request, spends a few paragraphs explaining why it shouldn’t need to do the thing it already did.

The application of the CLOUD Act to the original Section 2703 warrant at issue in this case would not be retroactive. Microsoft’s production of the requested information has not been “completed,” Landgraf, 511 U.S. at 270, as it remains possible for Microsoft to comply fully with the government’s demand for disclosure. The Section 2703 warrant remained valid after the CLOUD Act, and no real consequences have attached to Microsoft’s failure to comply with the warrant up to this point.

[…]

Nevertheless, Microsoft has refused to acknowledge either that the CLOUD Act applies to the Section 2703 warrant at issue in this case or that Microsoft plans to disclose the required information under the original warrant.

Microsoft’s objection hinges on unresolved contempt charges stemming from the case it successfully appealed twice. According to Microsoft, its compliance with the old warrant might trigger retroactive charges, which would be problematic for it. The DOJ points out no sanctions were ever threatened by the district court, which only entered contempt charges to allow the decision to be appealed.

Nonetheless, an exasperated DOJ has complied with Microsoft’s demand that a new warrant issued under the CLOUD Act be provided.

Accordingly, on March 30, 2018, the government applied for a new warrant covering the relevant information requested in the Section 2703 warrant at issue in this case. A magistrate judge issued the warrant that same day. Under the new warrant, which will replace the original warrant and which the CLOUD Act indisputably governs, Microsoft must produce any covered information within its “possession, custody, or control.” CLOUD Act § 103(a). Microsoft no longer has any basis for suggesting that such a warrant is impermissibly extraterritorial because it reaches foreign-stored data, which was the sole contention in its motion to quash.

And it returns to the subject again to remind the court how much of a pain in the ass Microsoft is being about all of this.

The government does not believe that seeking a new warrant was necessary in order to compel Microsoft to act: In light of the CLOUD Act, Microsoft should have simply complied with the existing warrant, to which it can have no valid legal objection…

The last loose end the government seeks to have tied up is the appeals court decision, which the DOJ claims could cause future jurisdictional issues for warrants issued by that circuit. It also lets the Supreme Court know it thinks the lower decision should also be vacated because it’s just so (subjectively) wrong.

Leaving the court of appeals’ decision in place as circuit precedent could therefore generate uncertainty in future extraterritoriality, Fourth Amendment, or subpoena cases arising in the Second Circuit. Given the serious flaws in the court’s reasoning, this case implicates the traditional need for vacatur to “clear[] the path for future relitigation of the issues” and to “eliminate[] a judgment, review of which was prevented through happenstance.”

The DOJ gets the win it wanted, but won’t have circuit precedent to rely on. Instead, it got a whole new law to use to force US companies to turn over data stored outside of the US. It will now be able to meddle in international affairs and open the door for similar meddling by other countries not quite as respectful of civil liberties as we are.

Filed Under: 4th amendment, cloud act, data, doj, due process, overseas data, privacy, subpoenas, supreme court, surveillance, warrants
Companies: microsoft