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Final Pre-Argument Thoughts on the Microsoft Case

Three thoughts about the briefing in the case ahead of Tuesday's oral argument.

(cross-posted at Lawfare)

I have blogged a lot over the last two years on the pending case of United States v. Microsoft, the case on whether Microsoft must comply with a search warrant for foreign-stored e-mails. With oral argument scheduled for next Tuesday, I thought I would add a few final thoughts before we finally get a sense of where the Justices might be.

(1) The briefing in this case is exceedingly weird. As I explained in glorious detail back in November, the big problem in the case is that the parties are debating the wrong law. Whether Microsoft must assist with the execution of a search warrant is an issue under the All Writs Act, not the Stored Communications Act (SCA). The SCA just requires the government to have a search warrant before providers can hand over e-mail. That was a huge deal in 1986 because Congress understandably assumed after Smith v. Maryland, 442 U.S. 735 (1979), that the Fourth Amendment probably didn't impose the same requirement. Here the government has a warrant, which is all that the SCA requires if it applies. As a result, the parties are arguing about a statute that has nothing to do with the issue in the case. (I should add that Jen Daskal disagreed with my view; I explained why I am not persuaded by her approach in this Twitter thread.)

The result is that the briefing in the case has an almost metaphysical quality. Because the briefs incorrectly assume that Microsoft only has to comply with the warrant if the SCA applies, the parties end up analyzing very weird questions: For example, where on the Internet is privacy? Where is the "focus" of a law that was designed to require a warrant when the government already has a warant? What are the alternative ways of obtaining foreign-stored e-mail if a warrant can't be used, based purely on guesses and instinct and no actual caselaw? It's a very odd set of questions to ponder, and it's set up by the parties' briefing the case under the wrong law.

(2) I had considered writing an amicus brief in Microsoft along the lines of my November blog post to flag the issue for the Justices, but I decided against it mostly for a practical reason. Even in the extremely unlikely event that the Justices would turn directions in the case based on this problem, Microsoft is only a statutory case. It demands a clear answer one way or the other. And a clear answer under the wrong statute is still a clear answer. Cf. Burnet v. Coronado Oil & Gas Co., 285 U.S. 393 (1932) (Brandeis, J., dissenting) ("[I]n most matters, it is more important that the applicable rule of law be settled than that it be settled right."). And besides, an amicus brief would have been due around the time I was moving to California. Talk about bad timing. So I figured I would sit back and just watch this one rather than participate.

(3) However the Justices decide the case, I hope they don't think of Microsoft as a Fourth Amendment case. Microsoft is a statutory dispute involving a statute that was enacted because the Fourth Amendment itself was suspected not to apply. As I wrote back in 2004 in A User's Guide to the Stored Communications Act, the SCA reflected the understanding in 1986 that Internet architecture would likely thwart Fourth Amendment protection. It therefore "creates a set of Fourth Amendment-like privacy protections by statute, regulating the relationship between government investigators and service providers in possession of users' private information." Whatever the SCA means, I don't think it is answered by modern interpretations of the Fourth Amendment.

To be sure, there are fascinating Fourth Amendment issues raised by the facts of Microsoft. I go into great detail on those issues in my article, The Fourth Amendment and the Global Internet, 67 Stan. L. Rev. 286 (2015). Questions include, who has Fourth Amendment rights online? When a government agent copies information online in one country, and then zips it to another country where it is opened, where has the search or seizure occurred? And if there are different standards of reasonableness in different countries, as lower court caselaw has held, what standards of reasonableness should apply to a copy made in one country and a disclosure made in another country?

These are great question that I attempted to answer in my article. But they're just not raised by the Microsoft case, as it's only a statutory case. The briefing sometimes looks to the Fourth Amendment, perhaps in part because the statutory focus involves the wrong statute. At least the Fourth Amendment is the correct amendment. But even so, I hope the Justices realize this is purely a statutory case.

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  • santamonica811||

    This is a total threadjack, but Reason does not--as far as I can tell--give an option of sending a private message to Orin or to any of the VC's usual suspects. Sorry about this.

    With the recent spate of guilty pleas (from the Mueller investigation) from various Republicans--and widespread speculation from liberal and conservative media re if any of these people will receive pardons from Trump, my question...

    --Can it be a condition of a plea agreement that the person pleading guilty will refuse a presidential pardon, should the president attempt to grant one? We know (from the Wilson case) that a person does hold a right to refuse a pardon. But can she be "forced" to do that, based on that plea agreement? I mean; the default is that I have a constitutional right to appeal my criminal conviction. But I can waive that right if I plead guilty, rather than risk a trial, yes? Does the same sort of principle apply to giving up the right to accept a pardon? If not, what is the specific constitutional protection that ensures my right to accept a pardon?

  • Orin Kerr||

    If only there were ways on the Internet of addressing a mail message just to one person.

  • Orin Kerr||

    (Seriously, though, I have no idea, without having to first do a lot of research, about the answers to your questions.)

  • santamonica811||

    Orin, how DOES one contact you (or EV, et al) directly and privately? At the old site, if I clicked on, say, your name, it brought up a way to contact you...I forget if it was via email or PM.

    But not here. If there is, in fact, a way, it's pretty well hidden.

  • Orin Kerr||

    Google me; the first link is my USC home page that includes an e-mail address.

  • Kazinski||

    What makes you think that someone actually has the option to accept or reject a pardon, Wilson v United States notwithstanding?

    Do they have a enforceable right to a cell after the president has pardoned them when he has ordered the bureau of prisons to discharge them? Can they get a writ ordering the executioner to carry out the execution?

    The pardon power is a presidential power, and it depends on the president's control of the administration of Justice to enforce, not the whim of the recipient.

  • santamonica811||

    I'm not sure I understand your question (no snark; really). If you mean, "What makes you think that the law is X, notwithstanding the one Supreme Court case on point, which did hold: 'the law is X,' " then I concede that I don't have anything else to go on.

    I do recall the talking heads on various news shows (several months back, when people started pleading guilty) discussing this, and asking if one could reject a pardon, so I know it's an issue that is not fully settled.

    While we could challenge my premise . . . I think current events makes my above question topical, unclear, and interesting

  • santamonica811||

    um...makes the answer to my question unclear, that is. [sigh]

  • MatthewSlyfield||

    If I recall correctly, the issue in the case that you are referencing was that the plaintiff was concerned that accepting the pardon (he hadn't even been tried yet) would be taken as an admission of guilt. Here the parties have already plead guilty. They have no reason to not accept a pardon, and I rather doubt that Mueller has the authority to condition a plea agreement on refusing any pardon that may be issued.

  • Voize of Reazon||

    By the time the pardon issued Wilson had withdrawn his not guilty plea and pleaded guilty instead.

    As to Kazinski's questions, ignoring Wilson still leaves Burdick vs. US 80 or so years later.

    George Burdick was city editor of the New York Tribune, and refused on 5th amendment grounds to answer federal grand jury questions about sources to a story they had run. His pardon was a maneuver to get around the 5th, but the SC held that he could refuse the pardon and maintain his 5th amendment objection.

  • mse326||

    How could that be enforced. Normally the governments recourse for not complying with the terms of the plea agreement is to revoke it, but then the pardon is still in play, just pre-conviction. I don't see how such a waiver could actually mean anything.

  • mse326||

    How could that be enforced? Normally the governments recourse for not complying with the terms of the plea agreement is to revoke it, but then the pardon is still in play, just pre-conviction. I don't see how such a waiver could actually mean anything.

  • Brett Bellmore||

    I'd kind of assume that, if a President pardons you for X after a plea agreement that you'll refuse the pardon, he can also pardon you for breaking the plea agreement. And likely would.

  • Voize of Reazon||

    Breaking a plea agreement would have to be a federal crime before the President would be able to pardon it.

  • Brett Bellmore||

    If there's any penalty at all for breaking it, it would have to be a federal crime, wouldn't it? It's not like prosecutors are entitled to penalize you for legal conduct.

  • Voize of Reazon||

    A plea agreement is similar to other mutual agreements you might enter into, You get a benefit you want from the other party in return for giving them something they want. If you renege you are no longer entitled to the benefit, but that doesn't equate to you being punished for a "crime of reneging".

  • Brett Bellmore||

    So the President doesn't need to pardon the breaking of the plea agreement, because the pardon renders it toothless.

  • Brett Bellmore||

    Ah, isn't it kind of up to the Supreme court whether or not it's a 4th amendment case?

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