Technology & Law: Can U.S. Law Enforcement Virtually Break Into Foreign Data Centers?

Earlier this week, Above the Law hosted an event entitled The Intersection of Technology & Law: Can U.S. Law Enforcement Virtually Break Into Irish Data Centers? The event was sponsored by Microsoft and organized by Civic Hall, and it concerned a case currently pending before the Second Circuit here in New York. The case is a challenge by Microsoft to a U.S. government search warrant seeking the content of a Microsoft customer’s emails. Those emails are located on Microsoft servers in Dublin, Ireland. The question presented by the case is whether the federal government can get that content through a warrant under the Stored Communications Act, which is part of the Electronic Communications Privacy Act (ECPA). The ECPA, enacted in the pre-world-wide-web era, governs the application of search warrants in the digital world.

Briefing in the case is completed, and argument is scheduled for September 9, 2015, before the Second Circuit. Interest in the case is reflected by the numerous amicus briefs filed in the matter, by prominent NGOs, corporations, technology scholars, and others. This case has major implications for technology, data privacy, cloud computing, international relations, U.S. business interests, and media, so it is deserving of our close attention.

Opening remarks were given by Viet Dinh, former assistant attorney general for the Office of Legal Policy at the Justice Department, and founding partner of Bancroft PLLC. He gave our audience an overview of recent Supreme Court rulings about law and technology, which are the larger backdrop against which the Microsoft case takes place.

The highlight of the evening was a lively discussion moderated by ATL Managing Editor David Lat, about all of the ins and outs of the Microsoft case. For a night of discussion with a rather serious intention, there were plenty of laughs and personal anecdotes shared with a very attentive audience. In addition to Viet Dinh, the panelists included:

• Julia Angwin: Julia is a senior reporter at ProPublica. From 2000 to 2013, she was a reporter at the Wall Street Journal. Her critically acclaimed book, Dragnet Nation: A Quest for Privacy, Security and Freedom in a World of Relentless Surveillance (affiliate link), is very relevant to the issues in the Microsoft case.
• Chris Calabrese: Chris is Vice President of Policy at the Center for Democracy and Technology, or CDT — one of the organizations that has filed an amicus brief in this case. Before joining CDT, he served as legislative counsel for the American Civil Liberties Union (ACLU). He is a longtime advocate of privacy protections, Internet openness, and limits on government surveillance.
• Christopher Sprigman: Christopher is a professor of law at NYU Law School, where he teaches intellectual property law, antitrust law, and comparative constitutional law. He is the author of numerous articles and co-author of a book, The Knockoff Economy: How Imitation Sparks Innovation (affiliate link). He previously served as appellate counsel in the Antitrust Division of the U.S. Department of Justice, where he worked on U.S. v. Microsoft, among other matters.

Here are some takeaways on this important topic from our esteemed panelists:

1. Do we need to rethink Fourth Amendment jurisprudence in light of new technology? In recent years, all signs seem to have been pointing to “yes”; in fact, Chris Calabrese thinks that we need warrants for everything that’s located in the cloud — after all, ECPA was created in 1986 before cloud computing even existed. “The Constitution is very sexy, but statutes really matter,” noted Professor Sprigman.

2. When is a warrant really a warrant? There are multiple interpretations of the word under the Stored Communications Act, and a judge determined that the government’s warrant here wasn’t a conventional warrant, per se, but was actually a hybrid — part search warrant, part subpoena. Professor Sprigman said the government’s classification of its warrant here is quite “brazen.” He went on to remark, “If the government gets what it wants with Microsoft, it’ll be interesting to see what it does with Google.”

3. Julia Angwin raised the critical point that both journalists and lawyers should care deeply about the Microsoft case because it’s their moral obligation to keep their sources and clients secure. In response, Viet Dinh commented, “If the Second Circuit gets this wrong, Congress will be forced to step in and act.”

Once again, thanks to our panelists for their insights, to our readers for joining us, and to our friends at Microsoft and Civic Hall for sponsoring a very educational evening.