Justices to Decide on Forcing Technology Firms to Provide Data Held Abroad - New York Times

The government asked the full Second Circuit to rehear the case, but the court deadlocked by a 4-to-4 vote. In dissent, Judge José A. Cabranes wrote that the panel’s decision had restricted an investigative tool used thousands of times a year while failing to “serve any serious, legitimate, or substantial privacy interest.”

In urging the Supreme Court to hear the case, the Justice Department said nothing should turn on Microsoft’s business decision to store data abroad that it “can access domestically with the click of a computer mouse.” The panel’s ruling, the department’s brief said, “is causing immediate, grave, and ongoing harm to public safety, national security, and the enforcement of our laws.”

“Hundreds if not thousands of investigations of crimes — ranging from terrorism, to child pornography, to fraud — are being or will be hampered by the government’s inability to obtain electronic evidence,” the brief said.

In response, Microsoft told the justices that it is up to Congress to revise the 1986 law and noted that both houses have recently held hearings to consider overhauls.

A ruling upholding the warrant, the company warned, would embolden foreign countries to seek the emails of Americans stored in the United States.

Microsoft added that the Justice Department’s position posed a threat to technology companies by requiring them to choose between complying with a warrant and disobeying foreign laws.

“These conflicts can place U.S. companies in the untenable position of being forced to violate foreign privacy laws to comply with U.S. warrants,” the company’s brief said. “And the growing privacy concerns of customers around the world mean that granting U.S. law-enforcement agencies that broad authority would hamstring U.S. companies’ ability to compete in the multibillion-dollar cloud computing industry.”

The case is part of the broader clash between the technology industry and the federal government in the digital age. Apple, for instance, battled the F.B.I. over helping investigators break into a locked iPhone that had been used by a gunman in a mass shooting.

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