Microsoft's Search Warrant Challenge: A Conversation With Christopher Sprigman Of NYU Law

This case has major implications for technology, data privacy, cloud computing, international relations, U.S. business interests, and media.

Ed. note: Thanks to Microsoft for sponsoring this post as well as our related event back in July.

Today, oral arguments took place before the Second Circuit on Microsoft’s challenge to a U.S. government search warrant seeking the content of a Microsoft customer’s emails. To get get some insight on the potentially far-reaching implications of this case, we checked in with Christopher Sprigman, a Professor of Law at NYU, where he teaches intellectual property law, antitrust law, competition policy, and comparative constitutional law.

Professor Sprigman’s scholarship focuses on how legal rules affect innovation and the deployment of new technologies. He is the author of numerous articles both in law reviews and in the popular press, as well as a book, The Knockoff Economy: How Imitation Sparks Innovation (Oxford 2012), co-authored with Kal Raustiala of the UCLA School of Law. From 1999 to 2001, Sprigman 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.

Can you give us a sense of what you think the implications of this case — both if Microsoft is successful or not — will be for technology, data privacy, cloud computing, and related issues?

If the government is successful, that means that federal law enforcement officials will be able to search and seize documents located anywhere in the world, just by enforcing a search warrant on the U.S. facilities of a giant company like Microsoft, Google, or Facebook. Which means a couple of things. Foreign Internet firms will be more reluctant to build facilities in the U.S. And U.S.-based Internet firms will be placed at a disadvantage. The rest of the world isn’t crazy about the idea of U.S. law enforcement having essentially unlimited power to access communications stored abroad. And it’s entirely possible that this will lead foreign customers of U.S.-based firms, or foreign firms with U.S. facilities, to think about taking their business elsewhere.

During the discussion back in July at Civic Hall concerning this case, you quipped, “The Constitution is very sexy, but statutes really matter.” Could speak a bit more about the interplay between the two?

So the Fourth Amendment to the Constitution forbids “unreasonable” searches and seizures. And it imposes a warrant requirement. But what constitutes an “unreasonable” search and seizure in the context of the worldwide Internet? What is the extraterritorial effect of a U.S. search warrant, if any? What expectation of privacy does the sender of an email have in his or her communication? These are all topics about which the Constitution has little or nothing to say — at least not directly. Courts interpreting the Constitution have ginned up legal doctrine on all these points, but “ginned up” is a pretty good term to describe what courts are doing in a lot of Fourth Amendment law — they are making it up as they go. It would be far better if Congress took a leading role in telling us what the rules will be in the privacy debates relating to online communication. We have the Electronic Communications Privacy Act (ECPA), which sets up some rules, but that statute was passed back in 1986, when the Internet was really still in gestation. It needs to be updated.

That same evening, you said, “If the government gets what it wants with Microsoft, it’ll be interesting to see what it does with Google.” Could you expand on that?

If the government gets what it wants in its dispute with Microsoft, it’s not going to stop with Microsoft. The government will almost certainly rush to take advantage of the fact that most of the companies that provide Internet infrastructure are based in the U.S. The government will use U.S. search warrants as a lever to pry open access to communications stored abroad — communications that were never intended to touch the U.S. and that have not touched the U.S. From the perspective of foreigners, U.S. law enforcement policy will become like U.S. surveillance policy — i.e., deaf to foreigners’ legitimate privacy concerns, and lacking any real mechanism for allowing those concerns to be heard. If you care about the future prosperity of the U.S. Internet industries, angering most of the world in this way may not be the best idea.

Our thanks to Professor Sprigman for sharing his insights, and thanks again to Microsoft. (Professor Sprigman is not being sponsored or compensated by Microsoft and the opinions expressed above are his own.)