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Attorney Josh Rosenkranz, left, and Microsoft President Brad Smith after the Supreme Court hearing. (Microsoft Photo)

In oral arguments before the U.S. Supreme Court Tuesday, Microsoft argued that the federal government is not authorized to demand emails, tied to a criminal investigation, that are stored in an overseas datacenter. Finding those emails and migrating them to the U.S., Microsoft says, would effectively allow the government to apply a warrant extraterritorially, which is beyond its power.

Some of the justices did not seem convinced.

Previously: ‘Global chaos’ or just a ‘click of the mouse’? Supreme Court set to hear Microsoft vs. US in overseas customer data dispute

“The government’s position, of course, is it’s not an extraterritorial act,” said Chief Justice John Roberts. “They’re going to Redmond, Washington, and saying you have to turn this over to us. It’s not the government’s fault that it’s located overseas. I suspect the government doesn’t care.”

On Tuesday the Supreme Court heard oral arguments in Microsoft vs. United States, which dates back to a 2013 investigation in which federal agents obtained a warrant for emails linked to a suspect in a drug trafficking case. Those emails are stored at a datacenter in Dublin, Ireland. Microsoft stores customer data on servers around the world.

Microsoft refused to turn over the emails, claiming that the government is reaching beyond the scope of the 1986 Stored Communications Act, a law that governs seizure of electronically stored communications. The law has not been updated for the modern age of digital communication and cloud computing. A bipartisan bill called the CLOUD Act has been introduced in Congress but is still in early stages.

“Wouldn’t it be wiser just to say, ‘let’s leave things as they are?’ If Congress wants to regulate in this brave new world, it should do it,” Justice Ruth Bader Ginsburg said during the hearing.

Justice Sonia Sotomayor echoed Ginsburg’s point, asking, “why shouldn’t we leave the status quo as it is and let Congress pass a bill in this new age?”

Michael Dreeben, deputy solicitor general for the Department of Justice, pointed out that passage of the CLOUD Act isn’t certain and urged the justices to consider the consequences of a Microsoft victory for law enforcement.

Justice Samuel Alito seemed sympathetic to Dreeben’s point. He asked how law enforcement could quickly obtain evidence held overseas in criminal investigations if Microsoft prevails.

“This is what troubles me,” Alito said. “It would be good if Congress enacted legislation that modernized this, but in the interim, something has to be done.”

The Justice Department claimed that its warrant is permissible because it applies to the location where the emails are handed over to the government, in this case Microsoft’s Redmond, Wash., campus. Microsoft claims the government is trying to diminish the migration of emails from the Ireland datacenter, which would be an extraterritorial act.

“It seems to me that the government might have a strong position there that the statute focuses on disclosure,” Roberts said. “And disclosure takes place in Washington, not in Ireland.”

Despite tough questioning, Microsoft President Brad Smith seemed optimistic in his comments after the oral arguments.

“I certainly come out of the courthouse, if anything, more encouraged than when we walked in this morning,” he said. “Because, in fact, I think that what this case makes clear, and what this morning has further made clear, is that we need 21st century laws to protect 21st century technology.”

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