DOJ Asks Supreme Court To Dump Microsoft Case, Let It Use New CLOUD Act To Demand Overseas Data

from the sighs-and-eyerolling-from-DOJ-counsel dept

Wed, Apr 4th 2018 1:26pm — Tim Cushing

As expected, the DOJ has asked the Supreme Court to toss the Microsoft case. The appeal sitting before the court deals with collecting data overseas using US-issued warrants, rather than mutual assistance treaties. As the DOJ argues in its motion to vacate [PDF], the passage of the CLOUD Act -- stapled to the tail end of 2,200-page budget bill -- makes this argument moot. For all intents and purposes, the new law (which apparently still has no effective date) grants the government the power to demand production of data stored overseas by US companies using a regular magistrate's warrant.

The motion goes further than just asking the Supreme Court to drop the case. It also takes some time to complain about Microsoft inconveniencing the DOJ by forcing it to acquire another warrant for the same info under the newly-granted authority. The DOJ, despite its apparent compliance with Microsoft's request, spends a few paragraphs explaining why it shouldn't need to do the thing it already did.

The application of the CLOUD Act to the original Section 2703 warrant at issue in this case would not be retroactive. Microsoft’s production of the requested information has not been “completed,” Landgraf, 511 U.S. at 270, as it remains possible for Microsoft to comply fully with the government’s demand for disclosure. The Section 2703 warrant remained valid after the CLOUD Act, and no real consequences have attached to Microsoft’s failure to comply with the warrant up to this point.

[...]

Nevertheless, Microsoft has refused to acknowledge either that the CLOUD Act applies to the Section 2703 warrant at issue in this case or that Microsoft plans to disclose the required information under the original warrant.

Microsoft's objection hinges on unresolved contempt charges stemming from the case it successfully appealed twice. According to Microsoft, its compliance with the old warrant might trigger retroactive charges, which would be problematic for it. The DOJ points out no sanctions were ever threatened by the district court, which only entered contempt charges to allow the decision to be appealed.

Nonetheless, an exasperated DOJ has complied with Microsoft's demand that a new warrant issued under the CLOUD Act be provided.

Accordingly, on March 30, 2018, the government applied for a new warrant covering the relevant information requested in the Section 2703 warrant at issue in this case. A magistrate judge issued the warrant that same day. Under the new warrant, which will replace the original warrant and which the CLOUD Act indisputably governs, Microsoft must produce any covered information within its “possession, custody, or control.” CLOUD Act § 103(a). Microsoft no longer has any basis for suggesting that such a warrant is impermissibly extraterritorial because it reaches foreign-stored data, which was the sole contention in its motion to quash.

And it returns to the subject again to remind the court how much of a pain in the ass Microsoft is being about all of this.

The government does not believe that seeking a new warrant was necessary in order to compel Microsoft to act: In light of the CLOUD Act, Microsoft should have simply complied with the existing warrant, to which it can have no valid legal objection...

The last loose end the government seeks to have tied up is the appeals court decision, which the DOJ claims could cause future jurisdictional issues for warrants issued by that circuit. It also lets the Supreme Court know it thinks the lower decision should also be vacated because it's just so (subjectively) wrong.

Leaving the court of appeals’ decision in place as circuit precedent could therefore generate uncertainty in future extraterritoriality, Fourth Amendment, or subpoena cases arising in the Second Circuit. Given the serious flaws in the court’s reasoning, this case implicates the traditional need for vacatur to “clear[] the path for future relitigation of the issues” and to “eliminate[] a judgment, review of which was prevented through happenstance.”

The DOJ gets the win it wanted, but won't have circuit precedent to rely on. Instead, it got a whole new law to use to force US companies to turn over data stored outside of the US. It will now be able to meddle in international affairs and open the door for similar meddling by other countries not quite as respectful of civil liberties as we are.

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Filed Under: 4th amendment, cloud act, data, doj, due process, overseas data, privacy, subpoenas, supreme court, surveillance, warrants
Companies: microsoft

28 Comments

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Anonymous Coward, 4 Apr 2018 @ 1:31pm

The DOJ's whole complaint seems to be based around Microsoft inconveniencing them by following the law.
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Anonymous Coward, 4 Apr 2018 @ 1:34pm

regardless of whether a company is from the USA or not, what gives the USA the right to take charge of the legal system in another country? there's no way in hell that this will be allowed to happen in any reverse case! as usual, it's the USA thinking it rules the world and has the right to do anything it wants!
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- Ninja (profile), 4 Apr 2018 @ 1:51pm
  
  Re:
  Nothing. But they can't complain when other countries come barging in as well. I'm feeling bad seeing the US shooting themselves in their metaphorical feet so much lately.
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  - ryuugami, 4 Apr 2018 @ 5:56pm
    
    Re: Re:
    Looking forward to the USGov's reaction after China and Russia start demanding personal data stored in the US. The levels of hypocrisy will be so off-scale, I'd better buy a new hipocrymeter right now.
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    - Anonymous Coward, 4 Apr 2018 @ 7:47pm
      
      Re: Re: Re:
      Make sure you properly calibrate it for Government Office or you won't get any readings below max.
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    - Hephaestus (profile), 5 Apr 2018 @ 8:19am
      
      Re: Re: Re:
      My personal ROFLMAO moment is going to be when another nation, using a foreign law like this, subpoenas the information on politicians in the United States ...
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Anonymous Coward, 4 Apr 2018 @ 1:39pm

running scared
This case could easily change into a challenge to the Cloud Act itself if Microsoft were to pursue it. All that is left is to see if MS wants to actually do that.

" to which it can have no valid legal objection... "

more fucked up logic and a sign of how much the DOJ thinks of itself. There is no such thing as a "no valid legal objection". An objection can be made against anything, it is up to the court to decide if the objection is overruled or not.
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Jason, 4 Apr 2018 @ 1:53pm

I've asked this question before, and surely will again, but it still bears repeating: what is so freaking hard about getting a warrant?

By all accounts, and the number of times "rubber stamp" is used in those accounts, not very much.

If the DOJ (or law enforcement in general, or whoever) wants something relevant to a case they should have no trouble persuading a judge of its relevance and getting them to sign off on a warrant. Getting a warrant never seemed like an insurmountable obstacle in all the previous decades that laws were enforced and criminals prosecuted.

One can only question whether they know ahead of time that a) they have no real probable cause of any kind to do the poking around they want to do, or b) they aren't interested in letting the accused challenge the supposed "evidence" used against them, following all of that inconvenient due process. Needing a warrant would just complicate things.
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- Anonymous Coward, 4 Apr 2018 @ 2:01pm
  
  Re:
  When the police were part of the community that they policed, the community gave them the infomation needed for probable cause, enabling them to get a warrant. Nowadays they have alienated the community and have to replace th infomation that the community gave them by going on fishing expedition to get the infomation to support probable cause, and enabling them to get a warrant.
  
  The more they alienate communities the more they have to rely on their ability to force people and companies to hand over data, and this leads to things like the abuse of third part data laws.
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Pixelation, 4 Apr 2018 @ 1:57pm

Will Microsoft and others now make a separate foreign corporation for data storage/management?
Seems like it could backfire for the DOJ, if they do.
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- Anonymous Coward, 4 Apr 2018 @ 2:21pm
  
  Re:
  Yeah, seems a likely thing to happen.
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  - Roger Strong (profile), 4 Apr 2018 @ 2:43pm
    
    Re: Re:
    First they'd split the company into "cloud" (Azure, Office 365) and "edge" (Windows, devices) divisions. So that the cloud division could be spun off or relocated overseas.
    [ link to this | view in chronology ]
    - Anonymous Coward, 4 Apr 2018 @ 2:50pm
      
      Re: Re: Re:
      That would not eliminate the cloud division having a US presence, the data centers needed for the US market, and that would be used as leverage to get the overseas data.
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      - Anonymous Coward, 4 Apr 2018 @ 3:10pm
        
        Re: Re: Re: Re:
        Read the “possession, custody, or control.” phrase. When MS splits off a "cloud" company and relocates it overseas, the "cloud" company splits off an "US relations" company that has no control over cloud data, but simply provides contracts to other entities to the overseas cloud corp.
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DONT MAKE ME LAUGH ( will i get arrested), 4 Apr 2018 @ 2:12pm

so what they are saying is
DONT USE USA SERVICES AND PRODUCTS IF YOU WANT ANY SECURITY OR PRIVACY
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- crade (profile), 4 Apr 2018 @ 2:57pm
  
  Re: so what they are saying is
  Yep, this is basically providing legitimate reasons for any other country who wants to put in protectionist measures to force this business to only be handled by local companies.
  
  Don't worry, I'm sure no country would do something like that.. :)
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- firebird2110 (profile), 5 Apr 2018 @ 12:26am
  
  Re: so what they are saying is
  And people wonder why I have always flat out refused to use 'The Cloud'. It sounds all so nice a fluffy and sweet but it's just storing your personal data on big corporate servers when it can be hacked, stolen or simply accessed by the likes of the US DOJ on a whim. To Hell with that. I'll take responsibility for running my own backups thanks.
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Anonymous Coward, 4 Apr 2018 @ 3:13pm

Stop treating computers as a neitherworld..
People have real rights(theoretically) to be secure in their papers and property, if JP Morgan could move most of the gold out of the US to Europe and hide it why shouldn't average citizens be able to, there was no consequence from him extorting the federal government.. oh right rich people don't play by rules.

Have separate states or just declare the amero the one world currency and all sovereign states null and void, and capitalism the one world religion FFS. Violence is the only thing that counts in this world, if you have the guns you have your way.
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- Roger Strong (profile), 4 Apr 2018 @ 3:46pm
  
  Re: Stop treating computers as a neitherworld..
  Governments like power too. Including the ability to set interest rates and other monetary policy.
  
  Which is why for all the "Amero by 2005! er, 2008! er, 2010!" claims, the conspiritards never did find any government plan for it or any elected official in any government who wanted it.
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  - Anonymous Coward, 4 Apr 2018 @ 4:28pm
    
    Re: Re: Stop treating computers as a neitherworld..
    Fuck it, any people that do not comply should just DIANF, the worst generals are best NUKE Korea fuck everything
    
    PRESS THE BUTTON.
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Anonymous Coward, 4 Apr 2018 @ 3:23pm

Is this viral advertising for the fall block buster movie entitled "Storage Wars" ?
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Anonymous Coward, 4 Apr 2018 @ 3:32pm

Microsoft Response
Via SCOTUSblog—

Microsoft's filed Response To The United States's Motion To Vacate And Remand With Directions To Dismiss As Moot (Apr 3, 2018)

Microsoft agrees with the Government that there is no longer a live case or controversy between the parties with respect to the question presented

. . . .

The Court should vacate the Court of Appeals’ judgment and remand with instructions to vacate the District Court’s contempt finding, vacate the opinions of the magistrate judge and District Court, and dismiss the case as moot

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- SpaceLifeForm, 5 Apr 2018 @ 10:26am
  
  Re: Microsoft Response
  Will be interesting if SCOTUS declines.
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Anonymous Anonymous Coward (profile), 4 Apr 2018 @ 5:11pm

A couple of problems

..."(which apparently still has no effective date)..."

Doesn't a law have to me effective to be enforced? Why is the DOJ trying to enforce a law that has yet to be effected? I understand that it 'may' become effective, at some point. But until then, it HAS NO FORCE. Predicting the effectiveness of the about to become law seems like the DOJ trying to avoid some 'inconvenience' by following existing law, rather than expected law.

There is also the question of :

"Microsoft's objection hinges on unresolved contempt charges stemming from the case it successfully appealed twice. According to Microsoft, its compliance with the old warrant might trigger retroactive charges, which would be problematic for it. The DOJ points out no sanctions were ever threatened by the district court, which only entered contempt charges to allow the decision to be appealed. "

There was, nor is, nothing to stop the DOJ from charging Microsoft for any 'creative' violation of 'some law' and the DOJ's contention that it never threatened anything is without believe-ability given their past behaviors and tactics. What would stop them?

Then there is the idea that the Constitution allows for laws that let the Government have control over assets controlled by corporations that do not exist in this country. Our Constitution does not make any mention of such an ability, so where does the Constitutionality of such a law as the Cloud Act come from?
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- Anonymous Coward, 4 Apr 2018 @ 5:29pm
  
  Re: A couple of problems
  
  Doesn't a law have to me effective to be enforced?
  
  From the U.S. House of Representatives - Office of the Law Revision Counsel (OLRC)—
  
  Frequently Asked Questions and Glossary
  
  Q: How can I tell when a law becomes effective?
  
  A: Unless otherwise provided by law, an act is effective on its date of enactment. . . .
  
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  - Anonymous Anonymous Coward (profile), 4 Apr 2018 @ 5:50pm
    
    Re: Re: A couple of problems
    Which leaves the question, is it enacted when passed by both houses of Congress, or when the President signs it, or if vetoed by the President when both houses of Congress overcome the veto, which then leaves us with a bill passed by Congress but not signed by the President.
    
    So, what is the date of enactment?
    
    Further, since it was not mentioned, did the President sign this bill?
    
    Anyway, thanks for the information, it was more than I knew.
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    - Anonymous Coward, 4 Apr 2018 @ 6:04pm
      
      Re: Re: Re: A couple of problems
      
      … did the President sign this bill?
      
      Cushing's article does link and embed the DoJ motion to vacate. From that document, on p.3 (p.7 in PDF)—
      
      B. The Passage Of The CLOUD Act
      
      On March 23, 2018, Congress enacted the Consolidated Appropriations Act, 2018, H.R. 1625, 115th Cong., 2d Sess. (2018). The President signed the Act into law on the same day.
      
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    - Anonymous Coward, 4 Apr 2018 @ 6:21pm
      
      Re: Re: Re: A couple of problems
      
      So, what is the date of enactment?
      
      Questions and Answers in Legislative and Regulatory Research (LLSDC)
      
      Q: B-3) Do U.S. laws become effective when the President signs them and is that the same as the date of enactment?
      
      Answer: The date of enactment of a federal law is the same as the date on which the President signs the bill into law. . . .
      
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