Hatch voices concern over digital privacy as Supreme Court takes on Microsoft case

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SALT LAKE CITY — From the outside looking in, it may appear that Utah Sen. Orrin Hatch and the Utah Attorney General's Office are on opposite sides of a potential landmark digital privacy case that the U.S. Supreme Court will review this session.

On Monday, the court announced the addition of United States v. Microsoft to its argument calendar. The case, which concerns a U.S. Department of Justice warrant in a drug trafficking investigation that seeks emails stored on a Microsoft server in Dublin, Ireland, pivots on an interpretation of a law passed over three decades ago. A lower court ruling sided with Microsoft's legal team, which argued that the 1986 Electronic Communications Privacy Act was never intended to reach within other countries' borders. Now the Supreme Court will weigh in on the matter, which privacy watchdogs say could have far-reaching impacts on how and when outside entities can access an individual's personal digital data.

While Hatch issued a statement Monday reflecting support of Microsoft's position in the case, Utah Attorney General Sean Reyes had previously filed a friend of the court brief in support of the Justice Department. Hatch is also sponsoring a piece of legislation, currently before a Senate committee, that would update the privacy act and may have rendered the need for judicial action moot.

"The laws governing digital data were written more than 30 years ago and were never intended to reach across international borders,” Hatch said. “If U.S. law enforcement is given unfettered access to emails stored in other countries, what is to stop the governments of other countries from getting emails located in the United States?"

Hatch's comments mirror concerns expressed in a Monday blog post by Microsoft President and Chief Legal Officer Brad Smith.

"If U.S. law enforcement can obtain the emails of foreigners stored outside the United States, what’s to stop the government of another country from getting your emails even though they are located in the United States?" Smith said. "We believe that people’s privacy rights should be protected by the laws of their own countries, and we believe that information stored in the cloud should have the same protections as paper stored in your desk."


Reyes spokesman Daniel Burton said in a statement that his boss supported the DOJ's position in the case out of the necessity to highlight law enforcement's need for clearer rules in such matters, but also supports Hatch's proposed legislative changes.

"Attorney General Sean Reyes supports Senator Orrin Hatch's proposed legislation, the International Communications Privacy Act, through which Congress establishes a legal standard for accessing extraterritorial communications," Burton said. "Our concern in the amicus brief was a lack of clarity in current law. Because Senator Hatch’s proposal clarifies the law and strikes a balance between law enforcement's public safety mission with the need for strengthened privacy for American citizens, we see it as an opportunity to address the concerns raised in the amicus brief."

University of Utah S.J. Quinney College of Law professor Randy Dryer said the argument that a U.S. law that allowed access to information stored on foreign-based data servers would create impacts much larger than just clearing the way for criminal investigations was on sound footing.

"It would be very difficult for U.S. courts to say that U.S. law enforcement can get access to data stored in Ireland or any other country but then we would not allow a country, who passed a similar law, to access data stored in the U.S.," Dryer said.

Dryer said while it's not unusual for the regulatory realm to lag behind advances in technology, in this particular case the rules are wildly out of date and he believes it could give federal lawmakers further reason to delay taking action.

"For whatever reason, Congress has failed to act on this issue," Dryer said. "Had they taken action, its likely this would not have fallen to judicial review. Now that the Supreme Court has accepted this case, I can see Congress saying, ‘Well the issue’s in front of the Supreme Court we’ll wait and see if we need to tweak the legislation.’"

Dryer noted digital privacy laws in the European Union, of which Ireland is a member, go much further than U.S. laws.

Hatch and other lawmakers have made multiple attempts at updating digital privacy rules. His current proposal, the International Communications Privacy Act, is before the Senate Judiciary Committee. Microsoft officials say they support the effort.

While an argument date has not yet been scheduled for the case, a ruling would likely be issued before June.

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