Media Contact: Curt Levey, (202) 510-0128,
February 27, 2018
Ruling for U.S. in Microsoft Case Would Impair Global Law Enforcement
FBI Controversies May Impact the Case at High Court Today

The following is the statement of Committee for Justice president Curt Levey on United States v. Microsoft, argued before the United States Supreme Court today:
Washington, D.C. — For many decades, the American people and our courts have given great deference to the judgment and credibility of federal law enforcement, even if they were suspicious of other government bureaucracies. But that enhanced level of trust may be diminishing after a series of FBI controversies involving the FISA court, the Hillary Clinton investigation, and the recent Florida school shooting.
As a result, the Justices may be less deferential this morning when the Justice Department argues that its crime fighters cannot effectively do their job unless they are permitted to compel companies like Microsoft to turn over our emails and other personal data even when stored on servers outside the United States (Ireland in this case). The DOJ will concomitantly argue that the 1986 Stored Communications Act (SCA) permits such warrants.
Aside from the FBI's recent problems, the Supreme Court should be skeptical of the Justice Department's arguments in this case because they are contrary to legal precedent and don't give enough regard to the long-term relationships between American and foreign law enforcement that are vital in the fight against terrorism, drug trafficking and other international crime.
If sanctioned by the Court, the Justice Department's decision to serve Microsoft with a warrant – rather than using the existing international treaty structure to get the data from Irish law enforcement – threatens the current regime of effective cooperation among the world's law enforcement agencies. The result is likely to be unilateralism, which also harms America's global tech companies by forcing them into the no-win situation of satisfying conflicting legal regimes.
Because the job of the courts is to interpret the law and not rewrite it, the Justices should be  wary  of DOJ's argument for reading extraterritorial reach into a 1986 statute that did not address and could not have anticipated law enforcement's reach across the sea to seize data stored in the cloud.
Court precedent calling for a presumption against such extraterritoriality should be enough to decide the case. But now that we've learned not to put the FBI on a pedestal, the Court has an additional reason to reject the expansive interpretation of the SCA the government seeks.


On Tuesday, the Supreme Court will decide whether tech companies that store our emails and other personal data on servers abroad can be forced to turn that data over to American law enforcement. In an op-ed published this morning in  The Hill , Committee for Justice President Curt Levey writes about what's at stake in both United States v. Microsoft and the critical legislation introduced this month—the CLOUD Act—intended to modernize the statute governing this question.

Levey writes that "two principles shared by virtually all conservatives are ... at stake: one, policy decisions should be made by the legislature, not by courts. Two, when the courts construe ambiguous legislation, they should err on the side of limited government power." A ruling for the government, Levey warns, would "undermine the presumption against extraterritoriality, an inherently conservative canon of statutory interpretation that presumes more limited government power that does not reach beyond our borders. If Congress wants to reach further, it must say so explicitly."

Earlier this month, the Committee for Justice and coalition partners Information Technology and Innovation Foundation, ACT | The App Association, ALEC Action, Niskanen Center, SBEC, American Commitment, American Consumers Institute, Taxpayers Protection Alliance, and National Taxpayers Union, released a letter in support of the Clarifying Lawful Overseas Use of Data (CLOUD) Act, which would create a legal framework that encourages cooperation while taking a major step forward in protecting the privacy of citizens. We are pleased to be joined on our letter by nine of the nation's premier defenders of technological innovation, economic growth, and consumer choice.

It is the job of Congress, not the Supreme Court, to set policy for cross-border data searches. "In providing clarity and encouraging comity, the CLOUD Act is an important and overdue step forward in creating a comprehensive legislative framework for determining the extraterritorial reach of court-ordered data searches. Without such a framework, the reach will instead be determined by courts lacking the policy expertise, international perspective, and democratic mandate of Congress," the letter states.

What is the extraterritorial reach of the Stored Communications Act? Is the Mutual Legal Assistance Treaty Process outdated? Should Congress change the current law? These questions have important sovereignty, privacy, and security concerns that the court will be grappling with. Watch last week's panel hosted by The Heritage Foundation featuring two experts who discuss the upcoming Supreme Court case and two U.S. Representatives who will outline their legislative remedy to this problem: H.R. 3718,  International Communications Privacy Act.

In the Wall Street Journa l, Michael Chertoff discusses the complications and conflicts that can arise when a search warrant compels the disclosure of data stored overseas.

In the New York Times , Thomas P. Bossert and Paddy McGuinness argue that Congress must act now and pass the CLOUD Act to protect due process and defend the rule of law.

On the Federalist Society blog, Michael James Barton argues that Constitution requires Congress rather than the courts to write our laws, therefore it is important to pass the CLOUD Act before the Supreme Court decides U.S. v. Microsoft .

In a SCOTUSblog symposium, Andrew Pincus argues that the government's case in U.S. v. Microsoft is not only wrong on the law, but would impair national sovereignty and law enforcement efforts in the long-run.
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