On December 13, 2017, the Cyberlaw Clinic filed an amicus brief in the United States Supreme Court on behalf of United Nations Special Rapporteur on the Right to Privacy Joseph Cannataci in the case United States v. Microsoft, Case No. 17-2. The case – commonly known as the “Microsoft Ireland case”– presents the question of whether a search warrant issued in the United States pursuant to a U.S. statute (the Stored Communications Act, 18 U.S.C. § 2703) can compel Microsoft to produce to the U.S. government the contents of an email account stored on Microsoft servers in Ireland. The Supreme Court is hearing the case this term on appeal from a decision by a three-judge panel of the United States Court of Appeals for the Second Circuit, which held that the U.S. could not enforce a warrant seeking digital information stored on overseas servers.
The Clinic’s brief on behalf of Special Rapporteur Cannataci supports neither party with respect to the question of domestic law at the heart of the case. But, it offers important context about Internet jurisdiction and places the right to privacy in its proper context against the backdrop of global human rights laws and norms. Specifically, the brief urges the Supreme Court “to recognize the universality of the right to privacy, as first recognized in New York on December 10, 1948 when the U.N. General Assembly adopted the Universal Declaration of Human Rights.”
The brief goes on to note that, because of the complexities associated with applying traditional international law principles of territoriality to online privacy, there are no easy answers to the questions raised in this case. Moreover, a sweeping ruling from the Court could have significant repercussions on international efforts–including those already underway–to develop streamlined processes that balance competing interests in scenarios like the one presented by this case. In light of those efforts, we argue on behalf of Special Rapporteur Cannataci, the Court should rule narrowly and thereby “respect the privacy interests of other nations and foster international cooperation.”
Mason Kortz and Vivek Krishnamurthy on the Cyberlaw Clinic team worked with fall 2017 Clinic students Osvaldo Galeano-Gamera, Devony Schmidt, Jon-Paul Berexa, and Levi Barry – along with Special Rapporteur Cannataci – on the brief.