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Supreme Court may rule on email warrants' reach outside the US

The Trump Administration has asked the U.S. Supreme Court to extend the reach of the 1986 Stored Communications Act and allow the collection of emails that are stored outside the U.S. in foreign server farms. When the Act was passed, most digital information was stored on personal computers. Now, most of it is stored in the cloud, which is made up of servers around the globe.

The issue arose in a 2013 drug trafficking case. Federal agents got a warrant for an email account through Microsoft, seeking both the emails themselves and information pointing to the user's identity. They suspected the email address was being used in the alleged drug trafficking operation.

Microsoft was apparently willing to turn over emails stored in the U.S., but many of them were kept on a server in Ireland. The Second Circuit Court of Appeals ruled that the Stored Communications Act, a U.S. law, could not be enforced in a foreign country.

The administration has asked the Supreme Court to intervene, citing the fact that Microsoft could retrieve the emails in Ireland remotely "with the click of a computer mouse." No Irish authorities need be involved.

It also claimed that the Second Circuit's decision put "hundreds if not thousands of investigations of crimes -- ranging from terrorism, to child pornography, to fraud" at risk.

Microsoft's president said in a blog post that attempting to enforce the Stored Communications Act outside the United States "would put businesses in impossible conflict-of-law situations and hurt the security, jobs, and personal rights of Americans."

If the 1986 law is outdated and inadequate, Congress should revise it

One of the judges on the Second Circuit appellate panel called for "congressional action to revise a badly outdated statute." Traditionally, when the courts find that a law cannot accomplish certain goals the way it is written, the legislature needs to act. Courts are not set up to weigh the varying public policy goals of legislation. They are only meant to determine what, precisely, laws say and whether they are constitutional.

"The Supreme Court can't answer these questions in the nuanced way that's needed," said an American University law professor interviewed by the Associated Press.

The issue has been brought up before Congress, but no action has yet been taken.

That leaves technology companies in the position of determining people's privacy rights without much guidance. They determine "what to retain, where to keep it, for how long, and whether to encrypt it," said the law professor. They're also deciding "when to comply and when to resist" government orders to turn over private information. 

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