Privacy Law

After passage of new law, Microsoft and US tell Supreme Court that email access case is moot

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The federal government and Microsoft have informed the U.S. Supreme Court that their pending dispute over prosecutors’ access to emails stored overseas is now moot.

The parties said the case is moot because of a new law signed by President Donald Trump on March 23, report the National Law Journal and the Washington Post.

At issue in the case was whether the Microsoft emails are beyond the reach of domestic search warrants issued under a 1986 law, the Stored Communications Act. The new law, known as the Cloud Act, provides that email providers must comply with court orders for data regardless of whether it is stored within or outside of the United States.

The government has already obtained a warrant for the emails held on servers in Ireland under the new law. Microsoft says in its Supreme Court brief that it will “evaluate the new warrant as it evaluates all warrants that law-enforcement entities serve on it.”

To challenge the warrant under the Cloud Act, Microsoft would need a reasonable belief that its customer is not a U.S. citizen and that there is a material risk that producing the email would violate Irish law, according to a statement emailed to the ABA Journal by a press person for Craig Newman, head of the data privacy practice at Patterson Belknap. He co-wrote a blog post about the case here.

A Slate analysis agrees that the Cloud Act provision regarding access to overseas information moots the Microsoft case. The publication goes on to analyze another section of the law that creates a framework for the United States to create international agreements that enable law enforcement agencies to access data in each other’s countries.

The international agreements could be used to bypass more cumbersome mutual legal assistance treaties, according to Slate.

The agreements can only be established with countries that protect privacy and human rights, according to a blog post by Microsoft president and chief legal officer Brad Smith.

See also:

ABA Journal: “Microsoft case underscores legal complications of cloud computing”

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