Microsoft Gathers Powerful 'Friends' in Appeal of Email Search Warrant
Earlier this year the U.S. Supreme Court decided unanimously in Riley v. California that police need a warrant to search the contents of a person’s cell phone when they’re stopped. Previously, police departments in California had operated under a practice that when a person was arrested, anything they had in their possession could be searched. The Court tossed out that idea despite the fact that the state of California raised the terrorist bugaboo. The Court was not persuaded by the government’s hypothetical argument that a search of a smartphone that was incidental to a traffic stop might prevent a terrorist attack. The BSA brief also mentions a point already gaining much currency in Europe which compares the U.S. action to one involving documents in a safe deposit box. That point is that if everything else were the same except that the document was a piece of paper stored in a safe deposit box in a U.S. bank located in Europe, then there would be no question that the U.S. has no right to demand the document directly. Instead, the requirement is to use the existing mutual assistance treaties to get such paper documents, just as they are the prescribed way to request digital information now.Why has the DoJ picked this legal fight with Microsoft? It would appear that in reality this isn’t about the email that belongs to a non-citizen of the U.S., but rather it’s about making a point. This is the DoJ’s version of that old advertising idea of throwing everything against a wall and seeing what sticks. The government was perhaps taking a chance that rather than fighting an expensive, cumbersome and drawn out court battle, Microsoft would simply acquiesce to the DoJ's will, which would establish a new legal precedent. Unfortunately for the DoJ, Microsoft didn’t roll over. Instead, the software giant decided to use its significant resources to fight for an important legal principal—that it wouldn't collaborate with the government by agreeing to violate existing U.S. and International law in the interest of expediency. The government, clearly believing that expediency justifies anything, no matter how legally egregious, likely didn't expect Microsoft's tenacity in fighting the case or the powerful friends it would marshal in the fight.
So why is the DoJ bound and determined to make Microsoft turn over the emails in question, rather than simply following the requirements of the existing law? The DoJ complains that they’re too cumbersome, but being cumbersome isn’t an argument that’s swayed the Court in the past.