The Second Circuit Court of Appeals today denied the U.S. government’s petition for a rehearing in the Microsoft-Ireland case, effectively sending resolution of the issue of the scope of U.S. warrants to the Supreme Court, Congress, or both. The appellate court, on a 4-4 vote, left in place the decision of a 3-judge panel, which found that U.S. warrants cannot compel Microsoft to disclose communications it stores in Ireland.
“The opposite ruling could have resulted in chaos and a privacy disaster. Providers would have been subject to conflicting obligations to an even greater extent than is the case today, and users’ communications privacy could become, over time, subject to the whims of not just the U.S. government, but also other countries seeking their data,” said Greg Nojeim, Director of the CDT Freedom, Security & Technology Project.
The government had argued that the full court should rehear the case because the panel decision had effectively put significant amounts of data held by large communications service providers, such as Google and Yahoo, out of its reach. The court, however, insisted that the law, and prior court decisions, compelled the panel’s determination.
“This is definitely not the end of the story,” Nojeim added. “The government will appeal this decision to Supreme Court or it will ask Congress to re-write the law, or it will do both.”
If Congress acts, any reform should include an update to the Electronic Communications Privacy Act to warrant for electronic communications content.