Just about every American interacts with the “cloud” on a daily basis. Pictures, documents and emails all migrate to cloud computing servers in an effort to save the massive amounts of data people produce today. Cloud computing is a fact of life for anybody who uses a computer to do work, communicate or gather information from the Internet.
Furthermore, every American benefits from the Bill of Rights. The Bill of Rights is not optional. The rights protected can’t be infringed upon by the federal government because our founders thought there were basic rights that a majority could not take away from the citizenry.
Right now, the Courts and Congress are struggling with this new reality. On July 14, 2016, the Second Circuit Court of Appeals ruled against the United States Government in the case Microsoft v. United States, stating that the government cannot compel Microsoft, or other companies, to turn over customer emails stored on servers outside the United States. This case is destined for the Supreme Court.
You may have never given thought to where your data is stored or where the cloud in located. Given the governments penchant for snooping and fishing in the name of keeping America safe from terror, you should.
Critics of this decision will say that the law needs to be updated to reflect new technology — I’m sorry we need to update the Fourth Amendment to the Constitution?
The Fourth Amendment to the Constitution of the United States:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
One does not have to be a law school graduate, read the majority opinion, or the Harvard Law Review to know that “papers” means emails in today’s vernacular. The 4th Amendment doctrine holds the line against unreasonable search and seizure. This decision holds that your emails are a physical things, and cannot be searched even with a warrant if your data is stored overseas because the law does not allow it.
This case touches on the idea of the reach of a warrant for your documents or correspondence. Think about the hypothetical if an NYPD detective asked to search your bag while you were standing on London Bridge. Even if the NYPD had a warrant, the New York city police department still does not have jurisdiction when in a foreign land.
Microsoft has told the U.S. Government to pound sand. Thankfully the Second Circuit Court upheld this position and your rights. Given that this decision is a year old and is winding its way to the Supreme Court it seems for the time being that the Government has retreated from this attempted intrusion.
Even so this has not stopped Congress, both in the House and the Senate Judiciary Committees, from getting in on the act and holding hearings in an attempt to find a way around the 4th Amendment. The Governments plan is to show that the Stored Communication Act of 1986 is the way around if they can convince Congress to change the law to reflect current technological realities. This law signed by President Reagan, stresses “that stored electronic communications held by third parties are subject to compelled disclosure.” Proponents of the government’s position argue that the 4th Amendment applies only to persons and not places. Under this line of reasoning one would have to be carrying handwritten letters in order to be free of government intrusion.