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Can the U.S. force Microsoft to give up emails stored abroad? Supreme Court weighs privacy vs. security

A case involving Microsoft and overseas data puts a familiar tech issue before the Supreme Court: the balancing act between the interests of law enforcement and personal privacy. Marcia Coyle of The National Law Journal joins Judy Woodruff to break down that case, as well as the justices’ ruling on the detainment of undocumented immigrants.

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  • Judy Woodruff:

    Today's Supreme Court case involving Microsoft and overseas data puts a familiar tech issue before the justices- the balancing act between the interests of law enforcement on one side and privacy interests on the other. Immigration has also been a key issue this week for the justices.

    And, as always, Marcia Coyle of The National Law Journal is here to explain.

    Hello, Marcia.

  • Marcia Coyle:

    Hi, Judy.

  • Judy Woodruff:

    So, let's start with the argument that the justices heard today, this dispute between Microsoft and the federal government. We know it started a few years ago. The federal government had a search warrant for Microsoft. What was that all about?

  • Marcia Coyle:

    OK.

    This warrant wasn't your — what we often talk about, a Fourth Amendment search warrant. This warrant was for e-mails that the federal prosecutors believed were important to a drug trafficking investigation. The e-mails were on a Microsoft server in Dublin, Ireland.

    But the warrant came through the Stored Communications Act of 1986. And Microsoft said that act doesn't apply outside of the United States and objected to the warrant.

    The lower federal appellate court agreed with Microsoft. The Justice Department brought the appeal to the Supreme Court. So the arguments today we're going to focus on whether the act applies outside of the United States, what really does this act mean.

  • Judy Woodruff:

    And remind us, why did the federal government want these e-mails so badly?

  • Marcia Coyle:

    Again, because they believed they were integral to the government's investigation of drug trafficking.

  • Judy Woodruff:

    Right. So, how — what kind of conversation or discussion did you see?

  • Marcia Coyle:

    Well, right away, there were several justices who were concerned about how to apply this 1986 law to modern technology.

    Justice Ginsburg, for example, said, back in 1986, no one ever heard of clouds. And she wondered, wouldn't it be better to leave things as they are? We have to give an all-or-nothing decision, but Congress can take account of all the nuances, the new technology.

    Justice Breyer also said, is there any way we can read the language in the act to adapt it to modern times?

    But lawyers on each side said that the duty of the justices was to interpret the act. So, what do they do?

    Well, the government's attorney said the focus of this law is disclosure and, once Microsoft retrieves these e-mails, disclosure occurs in the United States. So the act is not being applied abroad.

    The Microsoft lawyer said, no, the focus of the act is securing the security of these electronic communications, and going into Ireland to get them is invading a sovereign interest that has its own laws about storing communications.

  • Judy Woodruff:

    Could you tell anything about the kinds of questions, the differences in the kinds of questions the justices were asking?

  • Marcia Coyle:

    Their concerns were different.

    I would say Justice Alito, for example, seemed sympathetic to the bind the government was in. He said the government could have probable cause that a U.S. citizen committed a crime in the United States, but couldn't get e-mails to prove it because they were stored abroad.

  • Judy Woodruff:

    Well, this is one that a lot of people are watching for just so many reasons, because tech has become an issue increasingly before.

  • Marcia Coyle:

    And lots of friend of the court briefs were filed by tech companies, civil rights groups, privacy group, nations.

  • Judy Woodruff:

    So, separately, the justices weighing in on immigration. They handed down a decision today, following something that they made a decision on yesterday, which I'm going to ask you about in a moment.

    But, today, Marcia, they opted — they ruled on a case that has to do with undocumented immigrants in this country and how long and under what circumstances they can be detained.

  • Marcia Coyle:

    That's right. There were really three groups of detainees that were at issue in this case, asylum seekers, detainees who had committed crimes, but had finished their, completed their sentences, and then another group that felt they had a legitimate claim to being in the United States, but their claims haven't been heard.

    Well, the lower federal appellate court had looked at federal immigration law and ruled that these detainees did have a right under the law to bail or bond hearings, and said every six months they should be reviewed to see if they posed a danger to the community or to themselves or, you know, could commit a crime.

    It didn't guarantee that they would be released, but they at least had the right to a hearing.

  • Judy Woodruff:

    Now, one of the things that was interesting today, Justice Breyer went to some length to read an entire dissent, which is, what, 30-some pages.

  • Marcia Coyle:

    It was a summary of it.

  • Judy Woodruff:

    A summary of his…

  • Marcia Coyle:

    A long summary.

  • Judy Woodruff:

    A long summary of his dissent.

    But here — I'm quoting from part of what he read. He said- "No one can claim, nor since the time of slavery has anyone to my knowledge successfully claimed that persons held within the United States are totally without constitutional protection."

  • Marcia Coyle:

    Yes. He was upset that the majority, which ruled against the detainees in this case, seemed to say that, because you come into this country illegally, you are really not in this country, and so you're — there are no rights that apply.

    And his quote, as you just read, says that that's just the opposite, that we — since before slavery, you know, if you're in the United States, the Constitution applies. He read a summary of his dissent. That's an indication of how strongly he feels.

    I should say, Judy, that this case will go back to the lower federal appellate court, because these detainees have also raised constitutional claims. The issue before the court was federal immigration laws, statutory interpretation.

    So that lower federal appellate court now can decide whether, one, it can rule on their claims, and then actually rule on the claims. This case may come back to the Supreme Court.

  • Judy Woodruff:

    And, as we pointed out, this on the heels of yesterday's decision not to hear the case at this point on the DACA.

  • Marcia Coyle:

    That's right.

  • Judy Woodruff:

    The young undocumented…

    (CROSSTALK)

  • Marcia Coyle:

    All the court did yesterday was say it wouldn't leapfrog a lower federal appellate court which already had the government's appeal before it. It will wait to see what that court does.

  • Judy Woodruff:

    Marcia Coyle of The National Law Journal, thank you.

  • Marcia Coyle:

    My pleasure, Judy.

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