‘Microsoft Challenged the Wrong Law. Now What?’

Over at Lawfare, I recently put up a long post on a pending Supreme Court case, United States v. Microsoft. Here’s the introduction:

The Supreme Court recently agreed to hear an important electronic privacy case, United States v. Microsoft, on whether Microsoft has to comply with a United States search warrant for email stored by Microsoft on a server in Ireland. I’m going to explain in this post why I think the case comes to the court with a major problem. Specifically, Microsoft brought its challenge under the wrong statute. Microsoft is challenging its compliance under the Stored Communications Act (SCA), but it should be challenging its compliance under the All Writs Act (AWA).

The difference is important. Microsoft’s focus on the Stored Communications Act leaves the Supreme Court with no good options. From a perspective of policy, you wouldn’t want either rule that Microsoft’s framing sets up. Had the challenge been brought under the All Writs Act, however, the court could use traditional interpretive principles to craft a sensible rule in the case. This post explains how.

This will be a long post, so here’s a road map. I’ll start with the law before Congress enacted the SCA. Next I’ll turn to the SCA and show why Microsoft’s challenge really has nothing to do with it. I’ll then cover the AWA and show how Microsoft’s arguments are really about the AWA. I’ll next show how framing the case under the AWA gives the Supreme Court discretion to reach results that are vastly better than those under Microsoft’s misframing. I’ll conclude by discussing what options the Supreme Court has to better resolve this case.

You can read the whole post here at Lawfare.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/12/04/microsoft-challenged-the-wrong-law-now-what/