US Top Court Rules Microsoft-FBI Privacy Fight Moot After CLOUD Act Was Passed Through the Omnibus

Rafia Shaikh
FTC california privacy act 2018 cloud act microsoft avast

Earlier in April, we reported that the Department of Justice was asking the Supreme Court to dismiss its legal battle with Microsoft over emails stored in Ireland after the CLOUD Act was sneaked into Omnibus and passed without any review or hearings. This new legislation enables the US government to get access to overseas data potentially without a warrant - and foreign governments to do the same with data stored in the US.

As a refresher on how this bill was passed, here's an excerpt from our original post:

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[...] representatives were handed a 2,232-page bill at 8PM to review and approve for a floor vote by the next morning. As always, legislation that hurt user privacy was added in the final pages as an afterthought. The CLOUD Act has never been reviewed by any committee in either the House or the Senate or has received a hearing.

"It was robbed of a stand-alone floor vote because Congressional leadership decided, behind closed doors, to attach this un-vetted, unrelated data bill to the $1.3 trillion government spending bill," EFF said in its statement.

The Supreme Court has now duly obliged and dropped Microsoft privacy fight with the DOJ over whether FBI can force technology companies to hand over data stored overseas.

"No live dispute remains between the parties over the issue," the ruling (PDF) reads. "Further, the parties agree that the new warrant has replaced the original warrant."

This case, therefore, has become moot.

Microsoft had already supported the passing of the overreaching CLOUD Act because it believed the legislation helped the company obey government demands without taking the risk of annoying its users since it could simply point to this law.

The US government had used its fight with Microsoft as a "poster child" case for cross-Atlantic cooperation that wouldn't need going through the MLAT (mutual legal assistance treaties) process. Starting in 2014, the government had also tried to push Apple through a similar process - but on a very different case - trying to turn the San Bernardino shooting as a reason to justify backdoor access to iOS devices.

While that clearly didn't work out for the FBI (James Comey is apparently still salty according to his memoir published recently), Microsoft isn't usually as fierce a privacy advocate as Apple. Microsoft co-founder Bill Gates had said earlier this year that Apple and others are only attracting more regulation by not working with the government. It appears the company's current leadership also believes in the same strategy.

"We welcome the Supreme Court's ruling ending our case in light of the CLOUD Act being signed into to law," Brad Smith, Microsoft President and chief legal officer, said in a statement. "Our goal has always been a new law and international agreements with strong privacy protections that govern how law enforcement gathers digital evidence across borders."

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