Washington, DC— Today, Senators Orrin Hatch (R-UT) and Chris Coons (D-DE), together with Representative Doug Collins (R-GA) and other bipartisan members of Congress, filed an amicus brief with the Supreme Court in United States v. Microsoft Corp., also known as the Microsoft Ireland case. This crucially important case involves US law enforcement’s authority to compel internet service providers and others to disclose information stored outside the United States to US law enforcement. Hatch and his colleagues argue in the brief that the Court should not interpret federal law to reach overseas in this way but should instead allow Congress to address the issue legislatively. In particular, Hatch and his colleagues point to Hatch’s bipartisan International Communications Privacy Act, or ICPA, as a commonsense solution that properly balances the various privacy, security, and law enforcement interests involved.
“Congress is working hard to address the issue of law enforcement access to data stored abroad,” Hatch said. “Our bipartisan brief explains why the Court should allow Congress to complete its legislative work on this issue rather than jumping in and twisting federal law to reach outcomes Congress never intended or contemplated. As I’ve long said, the question of whether and when law enforcement’s authority should reach overseas is a policy question for Congress, not the courts. My bipartisan International Communications Privacy Act resolves this question in a balanced, comprehensive way, and I urge the Court to allow my colleagues and me to complete our work rather than rendering a decision that will upend legislative efforts and create substantial problems for service providers and their customers.”
Highlights from the brief include:
“This Court has long recognized that Congress ordinarily intends for its acts to apply only within the territorial jurisdiction of the United States. That understanding is embodied in the ‘presumption against extraterritoriality’—an important canon of statutory construction intended to reserve to Congress, rather than the courts, the complex and consequential policy decision of whether and in what circumstances federal law should reach beyond the nation’s borders.” (p. 2)
“The Solicitor General also argues that [federal law] should be interpreted to authorize the seizure of data stored outside the United States in order to avoid undermining law enforcement and national security interests. Those interests are undeniably important. But those policy considerations—all of which are the product of technological developments that significantly post-date the [statute’s] enactment—do not justify distorting the [statute] to apply in circumstances that Congress neither considered nor intended. Congress, not this Court, is the appropriate branch to address the Solicitor General’s concerns—through affirmative legislation. Indeed, there is growing bipartisan support within Congress for enacting a comprehensive framework to govern the circumstances in which a warrant may be utilized to secure access to data stored overseas. Whether and to what extent such a procedure should be authorized is a prerogative reserved to Congress.” (pp. 3-4)
“ICPA is designed to balance the ‘many interests that must be recognized when law enforcement agencies seek information from providers . . . .’ ICPA balances these interests first by clarifying that the government can compel disclosure of ‘the contents of a wire or electronic communication that is stored, held, or maintained by the provider . . . only pursuant to a warrant issued using the procedures described in the Federal Rules of Criminal Procedure’ or in accordance with state law. ICPA then authorizes the government to compel disclosure of data stored outside the United States in certain circumstances. . . . Because extraterritorial application of U.S. law can create conflict with foreign law, ICPA balances the need for U.S. law enforcement agencies to obtain communications of non-U.S. persons with the importance of avoiding offense to foreign countries.” (pp. 33-34)
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