18 July 2016

US court reminds us that Internet borders matter

A US Court of Appeals in New York confirmed again last week that regular old physical borders drawn on maps by cartographers continue to apply to the Internet and cloud services.

The long-awaited decision in Microsoft vs United States (2d Cir, July 14, 2016, No. 14‐2985) overturned a lower court decision to issue a warrant under US law that would have required the Microsoft Corporation (resident in the US) to produce emails stored on a server geo-located in Ireland.

The decision of the court ultimately turned on an interpretation of one part of the Stored Communication Act (18 USC 2703). The court concluded that when the US Congress drafted this part of the 1986 law empowering government bodies to compel disclosure of stored email using a “warrant”, that the Congress did not intend to include within the “warrant” authority the ability to compel disclosure of data stored on servers located outside the United States.

Although the case prompts discussion of many issues, there is one aspect I find especially interesting at the outset.

Everyone connected with the case (the judges, the parties, plus a galaxy of businesses, trade associations, and civil society groups who submitted “friend of the court” briefs) seem to agree one principle: where the Internet is concerned, physical location matters.

In their own way, everyone admits – expressly or by implication – that the merits of this case and the application of this law require that sovereign borders are taken into account. One of the Amicus Curiae briefs, submitted by a group of eminent computer science academicians, focussed solely on this technical issue – that all data stored “in the cloud” is actually stored at one or more physical locations.

There are some interesting arguments that suggest the court may have misinterpreted this law. (The government may yet try to appeal this ruling, either to the full panel of the Second Circuit or to the Supreme Court.) There are stronger arguments, many of them made by Judge Lynch in his lengthy concurring opinion, that the law itself is badly in need of updating.

I hope to explore a few of these arguments in the days and weeks to come. But for now, I thought it interesting that no one connected to the case tried to argue that the cloud or the Internet is truly “borderless” or that borders are meaningless. Any such argument would have been unsustainable.