Supreme Court Decision to Hear U.S. v. Microsoft Creates Narrow Window For Much Needed Congressional Action

October 16, 2017

WASHINGTON—Last year, the Court of Appeals for the Second Circuit ruled in United States v. Microsoft Corp. that U.S. law enforcement cannot use search warrants to seize data stored in foreign countries. Today, following the U.S. Supreme Court’s decision to hear the case, the Information Technology and Innovation Foundation (ITIF), a leading think tank for science and technology policy, released the following statement from ITIF vice president Daniel Castro:

No matter how the case is decided, there are potential negative implications for U.S. competitiveness. If the court supports the use of search warrants to obtain data stored abroad, it will feed the perception that the best way to protect data from the prying eyes of the U.S. government is to store it abroad with a non-U.S. provider. On the other hand, if the court rules that search warrants cannot be used overseas, foreign governments may try to force companies to store data within their borders to make it impossible for U.S. officials to execute a search warrant. This also damages U.S. tech competitiveness because barriers to the free flow of information impede digital innovation.

The only viable path forward is for Congress to resolve this issue through legislation. The current system of legal processes and international treaties are woefully out of date and ill-equipped to address the privacy and jurisdictional questions posed in this case. By taking up this case, the Supreme Court has started a countdown for Congressional action. Congress can and should act swiftly within this narrow window to develop a workable global framework for lawful government access to data stored in the cloud.

In July 2017, ITIF released a report outlining how outdated laws, court decisions, and treaties make it unnecessarily difficult for law enforcement to access data as part of lawful investigations that traverse borders. The report makes specific recommendations for how governments can use a global framework to establish policies for law enforcement to access data abroad without disadvantaging U.S. companies.