SCOTUS Action in US v. Microsoft Shows Window Closing for Congressional Action on Law Enforcement Access to Data

February 26, 2018

WASHINGTON—In advance of the U.S. Supreme Court hearing oral arguments this week in United States v. Microsoft Corp. regarding whether U.S. law enforcement can use search warrants to seize data stored in foreign countries, the Information Technology and Innovation Foundation (ITIF), the leading think tank for science and technology policy, released the following statement from ITIF Vice President Daniel Castro:

The clock is ticking on a legislative solution to the issue of law enforcement access to data in the cloud. If Congress doesn’t act, then no matter how the Supreme Court decides this case, there will be negative consequences for U.S. competitiveness. If the court supports the use of search warrants to obtain data stored abroad, then it will feed the growing perception around the world 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, then foreign governments may try to force companies to store data inside 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 are hardening, which would impede digital innovation for everyone.

The only good way forward is for Congress to resolve this issue through legislation. The most viable option is the CLOUD Act, a bipartisan compromise that would address the problems raised by this case while protecting consumer privacy, enhancing the capabilities of law enforcement, and preserving international comity. However, the window for Congress to act is rapidly coming to a close. Congress should act swiftly to resolve this issue before the Supreme Court issues a ruling that would very likely damage U.S. competitiveness.

In July 2017, ITIF released a report outlining how outdated laws, court decisions, and treaties make it unnecessarily difficult for law enforcement to access data as part of lawful investigations that traverse borders.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.