United States v. Microsoft Corp. (17-2)

argument 17-2

United States v. Microsoft Corp.

Supreme Court of the United States 1h 0m 6 speakers 7 chapters transcribed 5 days ago official recording ↗

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What is the Supreme Court hearing in United States v. Microsoft?

John G. Roberts 0:00

We'll hear argument first this morning in case seventeen two, United States versus Microsoft Corporation. Mr. Drieban.

Michael Dreeben 0:07

Mr Chief Justice, and may it please the Court, Section twenty seven oh three of the Stored Communications Act focuses on classically domestic conduct. It requires disclosure in a court order by the United States of information related to United States crime and here by a United States service provider.

Elena Kagan 0:28

It actually requires a search. It's the disclosure here is really a substitute for the government searching. It the Act permits the government to have a warrant and go in and search for these materials. or in the alternative to ask B. source to do its own search. And then Turn the materials over. So why you describe it as if it's only a disclosure, but it's really a search.

Michael Dreeben 1:02

So Justice Sotomayor i it's a hybrid instrument that has two functions. The first function operates directly on the provider. It requires a provider to make disclosure of information. That is a function that's classically performed by a subpoena or a discovery order. Does not authorize the government to go in, sit down at Microsoft's facilities, put hands on keyboards

Elena Kagan 1:26

Well actually it does. If you read if you read the provision It's an aut an alternative For that. Meaning the provision provides for a warrant that presumably would let the government do just that if it chose.

Michael Dreeben 1:41

So presumably not, because the statute actually says that the government can get a warrant requiring disclosure. The act that that uh occurs in the case is an act on the provider. And the fundamental distinction between A search and a subpoena type instrument is that in a search, the government does go right in and grab the information. In a subpoena context, the instrument operates on a person and it places an obligation on that person to make disclosure. Once it gets to the government, once the government has the account in hands, it executes the warrant aspect of the order, which is a probable cause of the government. Based order allowing the government to search the account. So it's essentially analogous to if the government knew that an individual had a laptop computer and it wanted to obtain that computer and search it.

Michael Dreeben 2:33

It could serve a subpoena on the individual requiring the production of the laptop. Once the government gets the laptop into its custody, it needs a search warrant to get in and look at the information. And here a single order achieves both functions under a statute whose structure and language makes clear that it places disclosure obligations on a provider and it then authorizes the government to conduct the search.

Unknown 3:01

Mr. Dreeban, may I ask you a a broader question? I think th the starting point all would agree. in what was it, nineteen eighty six? No one ever heard of clouds, this kind of storage didn't exist. There were good arguments that can be made either way. But a court can say either you are right, all right, or the other side is all right and there's nothing nuanced about it. If Congress takes a look at this, realizing that much time and and innovation has occurred since nineteen eighty six, it can preser um write a statute that takes account of various interests. And it isn't just uh all or nothing. So wouldn't it be wiser just to say let's leave things as they are if if Congress wants to uh regulate in this brave new world, it should do it.

Michael Dreeben 4:06

Well Justice Ginsburg, a couple of responses. First, I agree that the Court is construing a statute passed in nineteen eighty six and then amended subsequently, and we think the Court should leave things as they are with the uh instrument that Congress authorized operating on a person and requiring that person to produce information regardless of whether it's stored. uh overseas. Microsoft here made a unilateral decision to move information overseas. Nothing in the law requires it, nothing in the law prohibits it. What Congress did was act against a backdrop of law dating back to this court's Society Internacional versus Rogers decision. in nineteen fifty-eight and running through the Aerospatial decision in nineteen eighty-seven, under which the basic rule of both domestic and international law is that when a court has personal jurisdiction over an individual before the court and issues an order requiring disclosure of information, that person must comply with the order regardless of where it has chosen to store the information over which it has control.