Microsoft, Trump Administration Clash Over Email Searches

 Federal agents persuaded a judge to issue an order for a Microsoft e-mail account suspected of being used for drug trafficking.

But Microsoft, based in the United States, kept e-mails on a server in Ireland. Microsoft said that meant that the emails were out of the scope of the order. A federal appeals court agreed.

Late last month, the Trump government asked the Supreme Court to intervene.

The case is among several legal clashes that Microsoft and other technology companies have had with the government over digital privacy issues and the need for information from law enforcement officials to fight crime and extremism. Privacy law experts say companies have been more willing to lobby the government since the leak of classified information detailing US surveillance programs.

Another issue highlighted in the appeal is the difficulty faced by judges in trying to square the laws of decades with new technological developments.

In the latter case, a suspected drug dealer used Microsoft's e-mail service. In 2013, federal investigators obtained an arrest warrant under a 1986 law for the e-mails themselves, as well as identifying information about the user's e-mail account.

Microsoft delivered the information, but went to court to uphold its decision not to deliver e-mails from Ireland.

The New York federal appeals court agreed with the company that the Guarded Communications Act of 1986 does not apply outside the United States.

The Supreme Court's appeal said the decision damages "hundreds, if not thousands, of crime investigations, from terrorism to child pornography and fraud."

Emails, according to the administration, may reside on a server somewhere, but said that Microsoft can retrieve them "at home with the click of a computer mouse."

Microsoft president Brad Smith said in a blog post following the Supreme Court's appeal that the government's position "would put companies in situations that are impossible to conflict with laws and would harm security, jobs and personal rights Of Americans. "

Technology companies and privacy experts are among those who look closely.

"This is a big thing in a global Internet era. Servers are not only in the United States. They are all over the world, and figuring out the rules for data stored abroad is really important, not just for us, but For foreign governments, "said Orin Kerr, a law professor at George Washington University whose work is cited in the appellate ruling.

One problem identified by Kerr and other privacy scholars is that courts may not be the best place to solve these problems.

Should the same rules apply to the e-mails of an American citizen and a foreigner? Does it matter where the person lives?

"The Supreme Court can not answer these questions in the nuanced manner that is needed," said Jennifer Daskal, a law professor at the American University.

Even Judge Gerard Lynch at the New York panel that joined Microsoft called for "Congressional action to revise a poorly antiquated statute."

The Stored Communications Act became law long before the advent of cloud computing. To the extent that personal information was kept online, it was mainly on personal computers.

Today, companies build data centers around the world to keep up with their customers' demands for speed and access.

Members of Congress have introduced legislation to update the law, but nothing has been enacted.

Sen. Orrin Hatch, R-Utah, opposes the administration's appeal, but said in a statement that "Congress can and should modernize data privacy laws to ensure that the police can access the evidence in a timely manner."

Microsoft also supports the revision of the law. The company is also among those who challenge "gag orders" that prevent service providers from notifying customers that their data has been turned over to the government under court order.

Companies have been more willing to affirm their client's interests and their own interests since former National Security Agency agent Edward Snowden leaked US classified material on US surveillance programs, Kerr said.

Technology companies have enormous power, perhaps more than governments, in shaping the scope of the privacy rights of the digital age, Daskal said.

Companies decide "what to keep, where to keep it, how long, and whether to encrypt it," he said. And when governments produce court orders for customer information, it is the call of companies about "when to meet and when to stand," Daskal said.

Judges will not decide whether to listen to U.S. V. Microsoft, 17-2, before the crash. If they do, the discussion would not happen until next year.