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March 30, 2018 Practice Points

Supreme Court Hears Oral Argument on Stored Communications Act Cases

While it is a fool’s errand to predict the outcome of a case based on oral argument, the themes in these arguments will be of interest to attorneys following these issues.

by Sean Fernandes

In recent months the Supreme Court heard oral argument in Carpenter v. United States and United States v. Microsoft, cases addressing the Stored Communications Act’s (SCA) applicability to modern privacy issues. The background of these cases is available in this previous Practice Point.

While it is a fool’s errand to predict the outcome of a case based on oral argument, the themes in these arguments will be of interest to attorneys following these issues.

Carpenter v. United States

Oral argument in Carpenter suggested the justices are concerned about a lack of Fourth Amendment protections for cellphone transactional records. However, the questions indicated different potential scopes for such protections and different rationales for them.

Justices Elena Kagan and Sonia Sotomayor focused largely on Carpenter’s similarities to United States v. Jones, a case in which the court held that the Fourth Amendment required police to obtain a warrant supported by probable cause to attach a GPS tracker to a car.

Justice Kagan suggested that Carpenter and Jones both involve a proposition that Fourth Amendment protections extend to “new technolog[ies] that allow[] for 24/7 tracking.” In making this statement, she rejected the government’s reliance on Smith v. Maryland, a case in which the court established a “third party” doctrine that individuals have no “reasonable expectation” of privacy in materials voluntarily disclosed to third parties.

Justice Sotomayor initially took this analysis of Jones further, stating that she “would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.” However, she also indicated that the court did not necessarily have to overturn the “third party” doctrine. She stated that it may be reasonable “that my location at one moment or other moments might be searched by police,” but that it would not be reasonable for the police “to track me down for 24 hours over 127 days.”  

Justice Breyer also indicated that it “may be that here another exception [to the “third party” doctrine] should exist” given dramatic changes in technology since the Smith v. Maryland decision.

Justice Gorsuch took a different approach to suggesting a privacy right in cellphone transactional records, framing the geolocation tracking as an invasion of property rights. He asked both parties whether a conversion claim would arise from the theft of Carpenter’s information from a cell phone provider. Justice Gorsuch also suggested that the Wireless Communication and Public Safety Act of 1999 may create a property right in those records through provisions requiring telecommunications providers to protect the confidentiality of customer information. He also noted that the SCA could not supersede the Fourth Amendment.

Several justices indicated their concern regarding Fourth Amendment protections for geolocation data. However, even if a majority shares those concerns, there are still important questions remaining regarding the scope of those protections and their rationale.

United States v. Microsoft

Oral argument in Microsoft addressed the parties’ different conceptions of the SCA and raised questions regarding the appropriate method to address international privacy issues.

Because the parties agreed that the SCA does not apply extraterritorially, much of the argument focused on where the warrant would be enforced.  The government took the position that the SCA, and section 2703 particularly, is aimed at regulating disclosures, which occur in the United States. Therefore, in the government’s view, complying with the warrant at issue in Microsoft is a domestic act divorced from foreign legal considerations.

On the other hand, Microsoft argued that the SCA is aimed at maintaining privacy over stored communications, which are in Ireland in this case.  Microsoft also emphasized that complying with the warrant would require both physical action in Ireland and an invasion of Irish law, colorfully stating that the government “sen[ding] a robot into a foreign land to seize evidence . . . would certainly implicate foreign interests.”

Another significant theme was the appropriate method to address Microsoft’s international compliance concerns. Justice Breyer discussed the need for practically administrable solutions, such as requiring comity analysis when warrants implicate foreign privacy laws, rather than a bright-line ban on obtaining data stored in foreign countries.

The justices also considered deferring action to Congress. They noted that the CLOUD Act bill in the Senate may address SCA conflicts with foreign law. Justice Sotomayor stated that the government is requesting the court “to imagine what Congress would have done or intended in a totally different situation today” and asked the “[w]hy shouldn’t we leave the status quo as it is and let Congress pass a bill in this new age?” Justice Ginsburg echoed those thoughts, suggesting Congress should “regulate in this brave new world.”

Microsoft’s counsel encouraged this restrained thinking, cautioning that if the court “tr[ies] to tinker with this, without the tools that only Congress has, [it is] as likely to break the cloud as [it is] to fix it.”

This oral argument did not suggest a preferred resolution of the territorial enforcement issue. However, it did suggest some debate among the justices regarding whether the court should act and the scope of any such action. 


Sean Fernandes is an associate at Ellis & Winters LLP in Raleigh, North Carolina.

Sean Fernandes – March 30, 2018