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U.S. v. Microsoft (Argument February 27, 2018)


This case was Dismissed as “moot” (April 17, 2018).

When Congress passed The Cloud Act, the dispute between the parties was resolved. The Act says that data stored overseas must be turned over in response to a warrant under the Stored Communications Act.


Our email data is stored all over the world. Can the government make service providers hand it over?

The Stored Communications Act determines whether the government can get access to our private information in the hands of email and internet providers. In certain cases, the government must get a warrant. That requires a showing of probable cause (to believe that the information will reveal evidence of a crime).

The government showed probable cause in this case and got a warrant. The government believed a certain email account had been used to traffic drugs. It was a Microsoft email account, so the government served the warrant on Microsoft, demanding the company to hand over the contents of the customer’s emails.

Microsoft gave the government the information that it had stored in the U.S., but said it could not, would not access the actual contents of the emails because that information was stored in Ireland.

What the law says is different from what the law should be.

That’s what distinguishes legal arguments from policy arguments.

Courts are supposed to prioritize legal arguments. The legal argument is always the good argument. It means you don’t have to argue that the law should be changed. It means that the law – as is – reads in your favor.

The legal argument

Microsoft gets the good argument in this case. The Stored Communications Act was enacted when the internet was not what it is today. Congress did not imagine that information from United States accounts would be stored all over the world. So Congress said nothing about providing access to the government to data stored internationally.

If it’s not stated, it’s not intended. That’s the presumption against “extraterritoriality.” Microsoft gets to rely on it. The government – in opposition – must try to work around it. The case outlining the work-around is RJR Nabisco v. European Community (Supreme Court 2016).

Policy arguments

Because this case is potentially far reaching and invites a novel question of law, there are several arguments about what the law should be.

In this case, the policy arguments include:

  • The government argues: Not allowing access to the information would be a real problem (an “insurmountable barrier”) for law enforcement.
  • Microsoft argues: The laws of Ireland and EU control the release of the data stored in Ireland. If the U.S. requires Microsoft to release the information, Microsoft could be liable under those laws.
  • Additionally, Microsoft argues: The decision could disrupt foreign relations. A ruling for the U.S. could encourage other countries to mandate release of information held in the United States.

Courts sometimes recognize policy arguments. Sometimes judges secretly (or unconsciously) consider them as a way to help determine a legal interpretation. However, courts are not supposed to make policy. They are supposed to interpret the law. The lawmaking branch (Congress) is supposed to think through how the law should be.

Microsoft’s brief opens strongly by reminding the court of its role. Check out the Introduction.

More information

Legal Landscape on government surveillance

See an outline of all the laws relevant to government access to our electronic data.


About the Author

Mariam Morshedi

Mariam Morshedi

Mariam Morshedi is the Founder and Executive Director of Subscript Law. Before starting Subscript Law, she practiced civil rights law for AARP Foundation, where she litigated housing, consumer and disability rights issues.

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