A Needle In A Legal Haystack Could Sink A Major Supreme Court Privacy Case

Can a US technology company refuse to honor a court-ordered US search warrant seeking information that is stored at a facility outside the United States? Oral arguments in a pending case took place at the Supreme Court in February 2018, and they did not go well for Microsoft, the tech giant that is challenging a warrant for information stored at its facility in Ireland. But, amazingly, just three weeks after the Supreme Court argument, lo and behold, a Congress famous for gridlock passed legislation to modernize the law in question. Titled the CLOUD Act (Clarifying Lawful Overseas Use of Data), the statute was attached to the 2,232-page, $1.3 trillion omnibus spending bill. In a letter to the Supreme Court, Solicitor General Noel Francisco informed the justices that the administration intends to file a new brief addressing "to what extent" passage of the CLOUD Act nullifies the Microsoft case as a live controversy. While the CLOUD Act does not, in fact, give Microsoft much to be happy about, it does give the tech industry a couple of victories. The first is in the area of public relations. The industry can portray itself as having fought to protect its customers' privacy. Second, until passage of the new statute, foreign countries were threatening to send tech company employees to jail if they complied with US warrants. Now the legal lay of the land is much clearer.