The United States Department of Justice (DOJ) is looking to have the United States Supreme Court (SCOTUS) overturn a decision that found Microsoft did not need to provide the DOJ with data stored on foreign servers. This decision has been unsuccessfully appealed twice before.
The DOJ’s appeal was turned down twice partially because of the language of the issued warrants. The term “file cabinets” seemed to be the problem here, as warrants would allow for off premises searches of these “file cabinets.” The judiciary has taken this phrase to be literal, where the DOJ argues that syntax between digital and physical should not be a distinction when it comes to data and evidence collection. The appeals courts suggested they try to change the legislation if they are so unhappy.
The DOJ feels that a favorable Supreme Court ruling would be quicker and more efficient to accomplish their goals. Though it would be quicker, it may not be the best way to move forward, as Microsoft outlined in a blog response to the appeal being heard by the Supreme court. If I were a betting man, I would guess that the Supreme Court will strike down the appeal. Their past voting behavior has favored very literal interpretations of most things brought to them. In short, if a less literal lower appeals court had an issue with the phrase “file cabinets,” the Supreme Court almost certainly will.
Another Instance of the Digital Upsetting the Status Quo
The Internet has been an incredibly disrupting force in many well established systems, and the DOJ is no exception. As lines between physical and digital continue to become blurred, so too does the efficacy of some DOJ operations. But is this an overreach on the part of a government agency, or just them trying to do their job?
I argue both, but err on the side of an overreach. The databases in question are owned by a US based company, Microsoft, but reside in foreign nations. I have no love for companies attempting to hide or withhold information, but in this case the databases’ locations make it pretty obvious to me that the DOJ may be out of line here.
Petitioning and appealing for a governmental agency to have access to and demand data from foreign bodies with force makes it seem like the US is strong-arming that business and the governments of the nations where this data is held. As an example, I do not expect an Icelandic investigating body to demanding Tesla turn over its data. However, this seems to be what the DOJ is asking of Microsoft.
The implications of this being upheld is also rather worrying. It would set a legal precedent granting the DOJ the ability to gain access to potentially any foreign database in the name of justice. That sort of slippery slope is something we should resist, and I am rather pleased to see the US justice system sticking to their values with striking down appeals. We will have to wait until the Supreme Court makes a ruling, but if the appeal is struck down again then the DOJ has exhausted all of its non-legislative options.