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Warrants for Data Stored Abroad

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Jennifer Daskal has this op-ed in the NYT:

In 2013, United States agents served a warrant on Microsoft seeking the emails of a suspect in a drug case. Microsoft balked at the request, saying that the data was stored on a server in Ireland and out of the reach of United States law enforcement. To access the data, the United States would need to make a request to the Irish government through diplomatic channels -- a slow and burdensome process. The government fought back, arguing that the Washington State-based company could access the emails from the United States, without ever stepping foot in Ireland, and was required to comply.

Monday, the Supreme Court agreed to hear the case this term. Its decision -- which will come after two lower courts sided with the government and the Second Circuit reversed -- will determine the extent to which United States law enforcement can access data held abroad. Microsoft will argue that the data is outside domestic law enforcement's direct reach. The government will make the case that its warrant authority covers data held anywhere, so long as it can be accessed by a company operating from within the United States.

Both of these positions have troubling implications. What is needed is a solution that falls between these two extremes. Because the courts can't provide this, Congress needs to step in.
In principle, I agree that Congress should decide this issue.  As a matter of practical politics, though, good luck with that.  There are lots of issues in criminal justice that the legislative authority should decide but doesn't.  Their focus is elsewhere and the issues are sometimes tough, so the honorable representatives are just as happy to punt the ball the courts.

Might this issue be different?  Maybe, because it involves large and influential companies.  We will see.

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