Monday, January 22, 2018


The U.S. Supreme Court should strengthen the keystone of our Republic in the pending case of United States v. Microsoft: namely, the right to be let alone by government — “the most comprehensive of rights and the right most valued by civilized men,” according to Justice Louis D. Brandeis. The right to privacy finds expression in the Fourth Amendment which, among other things, prohibits “unreasonable” searches and seizures.

The issue presented in Microsoft is whether the antiquated Electronic Privacy Communications Act
(EPCA) authorizes search warrants to compel Internet service providers to retrieve and surrender a customer’s electronic documents that are stored on computer servers located outside the United States where compliance would violate foreign law.

The correct answer is “NO.” Twenty-three amicus briefs supporting Microsoft’s case have been filed with the Supreme Court by 228 signatories including members of Congress, European lawmakers, leading technology companies, media organizations, legal scholars, computer scientists, as well as trade associations and advocacy groups that collectively represent millions of members across 37 countries. Under our liberty-centered Constitution, privacy is deemed inherently good and government encroachments inherently suspect. Accordingly, any statutory or constitutional ambiguity should be resolved in favor of privacy and against government authority.

The Supreme Court’s occasional departures from this principle have been discredited. In Olmstead v. United States (1928), for instance, the court gave a crabbed construction to the Fourth Amendment in excluding government wiretaps from its protective umbrella. The error was finally corrected in Katz v. United States (1967), where the court concluded that the amendment protects expectations of privacy that society accepts as
reasonable — including phone conversations.

The Supreme Court should not repeat its Olmstead stumble in Microsoft by shortchanging privacy

interests in the interpretation of EPCA. Nothing in the statutory text even remotely suggests a government power to search for electronic information stored abroad. A cardinal canon of statutory construction militates against application of U.S. laws abroad to promote comity and avoid offense to foreign sovereignty and risk of retaliation. This strong presumption against extraterritoriality should be overcome only by explicit and unmistakable statutory language, which is conspicuously absent in EPCA.

Law enforcement should be constitutionally subservient to privacy unless the government demonstrates a compelling need. The United States is not witnessing a crime wave because EPCA was denied extraterritorial application by the U.S. Court of Appeals for the Second Circuit. In Microsoft, the United States is not investigating terrorism, espionage, homicide or similar crimes where supreme national interests are implicated. It is investigating drug trafficking which is a lower order offense. And no criminal can plan on evading justice by the happenstance that for business reasons an Internet company has chosen to store electronic information that may be incriminating in a foreign country.

Further, even if search warrant would be unavailing in such circumstances, the incriminating electronic information can regularly be obtained through bilateral Mutual Legal Assistance Treaties.

Law enforcement regularly exaggerates the need for ever-expanding law enforcement authorities like extraterritorial search warrants. In 2004, Congress enacted the Intelligence Reform and Terrorism Prevention Act to, among other things, authorize the FBI to seek FISA orders to conduct electronic surveillance against suspected “long wolf” terrorists. The provision has never been used — not even once. Yet the FBI has argued that “it remains a very important tool to have in our toolbox, and one we wish to keep.” Similarly, section 702 of the Foreign Intelligence Surveillance Act Amendments of 2008 was justified as a cornerstone to defeating of international terrorism in the United States. Yet the section has not thwarted a single terrorism incident in the United States.

Finally, if the United States resorts to extraterritorial search warrants for law enforcement purposes, other countries will insist on reciprocal rights to enforce their domestic laws, including Russia or China. We would be setting a precedent that would enable President Vladimir Putin to issue a warrant to an Internet provider in Moscow to surrender emails of foreign reporters stored in the United States. In other words, extraterritorial search warrants for the United States are a cure worse than the disease.

Privacy admittedly inches upward the risk that wrongdoing may escape punishment. But it is a small price to pay for protecting the right most valued by civilized men.

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