Monday, February 26, 2018
Orin Kerr has this post at The Volokh Conspiracy. In part:
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?