In U.S. v. Microsoft, a Decades-Old Law Leaves Few Good Options

Writing in Wired, Morrison & Foerster’s David Newman reviews last week’s much-anticipated oral argument in United States v. Microsoft—which asks whether a warrant issued under 18 U.S.C. § 2703 of the Stored Communications Act (SCA) reaches communications stored overseas by providers located in the United States. Among the takeaways of oral argument was that several justices appeared to see the case as presenting two imperfect outcomes: If the Supreme Court rules in Microsoft’s favor, it could jeopardize the government’s ability to collect information necessary to prosecute serious crimes; a ruling for the government, on the other hand, could render U.S. technology companies less competitive globally and increase the risk that they will be subject to conflicting legal obligations under U.S. law and the laws of foreign jurisdictions where they store data.

With many observers looking to the justices’ questions for insight into how they may ultimately vote, Mr. Newman suggests that many of the justices—and the parties—appear to agree upon one thing: because the SCA did not contemplate cloud or other modern data storage technologies when it became law in 1986, Congress is now ultimately better positioned to resolve this issue through new legislation. Could the pending CLOUD Act do just that?

Read more in David Newman’s Wired article.