WASHINGTON – Supreme Court justices will hear a case this month involving Microsoft's heated dispute with federal prosecutors over whether it must turn over data now hosted in a storage facility in Ireland. At the heart of the legal dispute is whether U.S. courts can compel a company to turn over an individual's data when it is held overseas.
The case has drawn intense global interest, including more than a dozen legal briefs to the Supreme Court from abroad, in a sign that some parties believe a ruling may offer a future road map for the internet.
The showdown is unfolding on several fronts. Bills put forth in both chambers of Congress this week would partly resolve disputes over law enforcement access to private data held across borders. The bipartisan bills would obligate service providers in "possession, custody or control" of data to turn it over to prosecutors under certain conditions regardless of where it is stored.
Still, some mystery surrounds the legal dispute that will be aired Feb. 27. For one, prosecutors have never identified the person who was targeted in a warrant issued by a New York district judge on Dec. 4, 2013.
"We don't know what the nationality is of the subject. We know that the case is about drugs. But we don't know a lot more than that," said Gregory Nojeim, senior counsel at the Center for Democracy & Technology, a public policy group.
Prosecutors demanded from Microsoft all e-mails and information associated with the subject's account, and the tech giant responded that it could not be forced to turn over information stored overseas, in this case at a data center in Dublin, Ireland.
The case goes to a conundrum of the modern age: Where does data in "the cloud" actually reside and what entity should have control?
"Is the data on the server, wherever the server is located? Or is the data from wherever you can access that server? Or does the data not have any location?" asked Faiza Patel, co-director of the Liberty and National Security Program at the New York University School of Law.
The most pertinent statute, the Stored Communications Act, passed three decades ago.
"The government relies on a law that was enacted in 1986, before anyone conceived of cloud computing," Brad Smith, Microsoft's president and chief legal officer, wrote in a blog post Jan. 19.
While prosecutors and big tech companies clash over access to digital data in the United States, the issue also has broad resonance overseas, leading some countries to demand that data be stored within their own borders. Prosecutors abroad also complain of obstacles to conducting probes of criminal suspects using U.S.-based webmail.
The U.S. government has struck mutual legal assistance treaties with about a third of the world's countries. The mechanism can clog the wheels of justice.
The Microsoft case has elicited an outpouring of briefs from people, groups and governments around the world.
Among those filing such briefs, or joining in them, are the European Commission, Ireland, the New Zealand privacy commissioner, law societies of Europe, the Australian Privacy Foundation and the United Nations special rapporteur on the right to privacy.