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tv   U.S. v. Microsoft Corporation Oral Argument  CSPAN  March 6, 2018 3:37am-4:39am EST

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netanyahu. on c-span3, director of national intelligence along with the director of the defense intelligence agency testify on a national security threats. national security threats. supreme court. this oral argument is one hour. >> we will clear or -- we will hear arguments first in united states versus microsoft corporation.
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justice sotomayor: the government must have a warrant and go in search for these materials. or the alternative to ask the source to do with its own source and turn the materials over. you describe it as if it is only adisclosure but it is really search. >> it is a hybrid instrument. the first function operates on the provider. it up -- requires the provider to make disclosure.
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that is classically performed by subpoena or discovery order. to go into authorize a facility and put hands on keyboards. : actually itayor does. this is an alternative for that. being that the provision provides awards that presumably allows the government to do just that. or if statute actually says the government can get award to requiring disclosure. -- a warrant requiring disclosure. the fundamental distinction between a search and subpoena type instrument is that in a search the government goes in and grabs the information. a subpoena, the instrument operates on a person at places and operation -- obligation on the person to make that disclosure.
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once the government has the account in hand, it executes the warrant aspect, which is a probable cause-based order allowing the government to search the account. it acknowledges that if the government new and individual had a laptop computer and it wanted to obtain that computer and search it, it could serve a subpoena on the individual of theng the production laptop. once the laptop is in government custody, it needs a search warrant to get information. here, a single order achieves under a statute whose structure and language makes clear at places disclosure obligations on a provider and authorizes the government to conduct the search. >> may ask your brother question? point, all starting would agree, in 1986 no one ever heard of clouds or this kind of storage.
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it did not exist. there are arguments it can be made either way. but it is important to say you are right or the other side is all right. there's nothing nuanced about it. if congress takes a look at this, realizing that much time canoccurred since 1986, it write a statute that takes account of various interests. it is not just all or nothing. say tot it be wiser to ifve things as they are congress wants to regulate this brave new world it should do it? >> a couple responses. i agree it was amended subsequently after 1986.
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we think the court should leave things as they are with the instruments congress authorized requiring that person to produce information regardless of whether it is stored. microsoft made a unilateral decision. nothing in the law requires or prohibits it. congress acted against a backdrop of law dating back to another decision in 1958 and running through a decision in 1987, under which the basic role of both the mystic and international laws that when a court has jurisdiction over an issues, thatat person must comply with the order regardless of where they have chosen to store the information.
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say thatcorrect to congress agrees the act is not have extraterritorial application? kennedy.ustice >> do you read the statute that way? >> we read it against the backdrop. unless the statute clearly has extraterritorial application in its structure or operation, it has son. we're not arguing this application is extraterritorial and permissible. we are saying it has always been the rule for decisions of this court and the lower court. a unbroken line that when party is before u.s. court, the court issues an order saying produce operation. conduct.omestic and it is viewed as domestic in law,ct in international
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not just u.s. law. happen.omething has to something has to happen to those computers in order to get the emails back to the united states. >> at yes. this court has a test for determining whether an application of the statutes that has domestic and foreign conduct is to mr. gore extraterritorial. as justice alito put it in the rjr opinion, one has to look at the focus of the statute. if the focus has to mystic and that in view, then it is a domestic application of the if it must occur abroad. >> why would that be the case that we would not take cognizance of the fact that information must be transmitted from abroad to the united states before it can be disclosed? there is a chain of activity required. why should we divorce the first
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half from the second? >> because i think the way the court has to approach this is to look at the language of the statute and the actual text and try to identify what is the focus. >> i understand your argument that in order to disclose, it anticipates certain antecedent conduct. to ignore that, i think is that -- >> i think it provides a test that says if the activity that is within the focus of the statute, the fact that there may be antecedents or other conduct detract. does not suppose a defendant in federal and orderedonvicted to pay a fine and the defendant said i cannot do that. they are located abroad. i am confident the courts would say the obligation falls on you. how you raise the money is your
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concern. it is not in extraterritorial application to say, bring the money home and pay the fine. that is what we are asking to happen with the warrant. the text of the statute says nothing about extraterritorial conduct. t-rex i do not note that you fairly answered justice ginsburg's question. -- >> i do not know that you fairly answered justice ginsburg's question. if you look at the statute and its reference to stored records it is a pasttion, technology. an old concept. but i think it is fair to say that back then they were thinking that where these materials were stored had a geographical existence in the united states. not abroad or anywhere else. and that they were protecting the communications stored in
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particular locations. things have changed but what you are asking us to do is to imagine what congress would have done or intended in a totally today.nt situation than the problem justice ginsburg alludes to is the fact that by doing so we are encroaching on the very thing that our extraterritoriality does not want us to do. what our jurisprudence is not one is to do, which is to create international problems. i understand there is a bill being proposed by bipartisan senators that would give you most of what you want, but with great protections against foreign conflicts. there are limitations involving records that are stored abroad. why shouldn't we leave the status quo as it is and let congress pass a bill in this new
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age? that addresses the potential meeting wouldyour create. >> i'm going to start with the last part of the question and come back to the first. there is not an international problem here. this is largely a barrage microsoft was seeking to create. mirage microsoft was seeking to create. briefsave a bunch of telling us how much this conflict. >> know whether government has come to this court saying the order we seek would conflict with its law. the state department and the office of international affairs have heard from war and governments about the way we have typically operated under 27034 decades.
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the complaints go the other way. the complaints are that foreign governments need information from u.s. providers and come here. they depend on the united states seek into court and information from the provider wherever it may be located. the microsoft decision has caused great interference with our ability to help law enforcement partners and force their laws. the microsoft position puts us out of compliance with our international obligations. treaty joined by over 50 courts inquires particular jurisdictions to have the authority to provide information and response to corporate questions, regardless of where does stored.
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that is part of the budapest convention. the international baseline is exactly what the government is arguing for. we're the ones urging -- >> because there has been a lot of back and forth and i tend to disagree. there is an open question on the budapest treaty. but putting that aside, assuming the point being made, there is a bill. can you tell me where it is in the legislative parse -- process? bipartisan? it does deal with certain rights the access ofs to this information when stored in foreign locations. why shouldn't we wait for that bill? >> first of all, this court's duty is to interpret the statute under its own and interpretation tenants. this is an unusual act to
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start with. >> there are couple reasons for that. no other court since microsoft has agreed with the second circuit. the second circuit decision has caused grave and immediate harm to the government ability to enforce criminal law. as to the question is that cloud act as it is called, it has been introduced. it is not been marked up or voted on by any committee and it certainly has not been enacted into law. this court's normal practice is to decide cases before it based on the laws that exist rather than waiting for an uncertain legislative process. as to the bill itself, it does not retrench the authority the herenment says it is today. it actually endorses and an unqualified manner the government's ability to get information from a provider of her home and has jurisdiction regardless of the location of
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the data. it provides useful mechanisms for bilateral cooperation that would facilitate other nations abilities to get information from our providers and our ability to get information from with safeguards. but those are supplementary protections that do not exist apart from the fundamental 2703 obligation. which, i would i does have built-in protections to address justice ginsburg's concerns. lower courts have confronted this problem in a variety of other context. it is not a new problem. in the banking area, the government has been very active getting subpoenas on branch offices of foreign banks that have -- "subpoena."he word thed you help me focus on text here, the statute uses the word "warrant." which has a narrower
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understanding territorially, unlike subpoenas. we know it new the difference. help me out with that. i'd send glad you brought up the text. i think the text is the government's friend here. what the statute does is create obligations of disclosure. it puts an obligation on a provider to make this disclosure. what a warrant does, if it is in 41 ordinary form, under rule apart from this statute, award is an authorization to a law enforcement officer to go in and search. it does not put the obligation to do anything on anybody else. it puts the government in the drivers seat. justice gorsuch: it does not do that. it uses the word "warrant." what do we make of that? >> it provides three mechanisms to obtain disclosure. a subpoena, and order like in
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the carpenter case, and a warrant. those three instruments correlate with the different levels of sensitivity of information that congress perceived. it ratcheted the the showing the government had to make in order to get the disclosure order. instead of saying go get a warrant, it does get awards using the procedures of role 41. not all of rule 41. provisionsrial provides for nationwide service of orders. it goes on to specify the disclosure obligation applies instrument, behe it subpoena, 2703, or warrant. it falls on the provider to make disclosure. that is important because when you have in order to provider, laws the provider to do what my friend here did.
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come into court and make an objection before the instrument is executed. with a warrant, the parties do opportunity. government chose up with a warrant, the citizens obligation is to comply. it ensures that the recipient has the obligation to raise various objections about burdensome this which are also feeders -- teachers associated with warrants. finally, it avoids the intrusiveness of a warrant. awards allows the government to in. right we could get an ordinary warned if we wanted to. we would go to microsoft headquarters and ask the gentleman at to step aside and do it ourselves. keyboard to step aside and do it ourselves. but the wort is for providing information and protects privacy
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interest. two things were going on. we are executing a warrant overseas. that is not true. we are putting an obligation on a domestic provider to comply with the domestic court order with information from wherever it is drawn. second, the court below felt we were invading privacy overseas. there are two fallacies i think. this is not a case about privacy. the government has the gold standard of an instrument to address privacy. a probable cause-based warrant issued by a judge that describes with particularity what we want. that is a hallmark in our domestic system of how privacy interests are addressed. >> do you think there is anything that the stored communications act prevents you from obtaining this information in either of the two conventional ways that you mentioned. one by getting a grand jury subpoena for stored
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communication. the act does not apply here. could you go to a grand jury and get a grand jury subpoena? or conduct the kind of search you just referred to? if you did that, would microsoft have any opportunity to contest that search? >> we got an ordinary conventional warrant. have ant does not opportunity to contest. the government goes in and takes control of her property it needs to conduct the search. subpoena is a different question because the question would be whether 2703 to geto occupy the field information or instead lets us use grand jury subpoenas in areas not covered by 2703. what is clear is that 2703 was meant to build on categories of existing instruments, not adding a new one of congress's own device. the subpoena instrument is useful in certain circumstances
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for information under the way congress wrote the statute if we give notice to the person whose privacy interests are implicated. it also allows us to get basic subscriber information. we don't have to go to a court first. we issue the instrument. the provider has to make disclosure. happening when the orders are sought outside of the second circuit? there is talks of leaving things alone but is the rest of the country going to follow what the second court decided? are they doing that? or are they continue to issue the kinds of orders that were issued in the past? >> every district court that has written an opinion outside of this has rejected the second circuit approach. is continuingtes to compel information from service providers regardless of where they store it. in the case of providers like
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google, algorithms allow them to move information around the globe in order to maximize the efficiency of their system and much of the information we're getting is coming from overseas. we have heard no protest from foreign governments. theset is happening when district courts outside of the second circuit order these? not appealing? >> in some cases there are appeals on hold pending this court's disposition of the issue. it is not going to go away. if congress does not and legislation, we will be here in the exact position we are here in today. it is information that is extremely vital to criminal law enforcement because so much from a law enforcement today is international. see thehe problem -- i problem, i think. but what i don't see, maybe i
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have to do back and study it, is your answer to justice gorsuch is questioned. they are with you on this, you know? but i think the language of the says, aand the statute government entity may require disclosure by a provider on electronic communication only pursuant to a warrant issued using the procedures described in the federal rules of criminal procedure. that is what it says. so i go to that end the first thing i discover is you ask a magistrate judge with authority thethat district and has authority to seize a person or property located within the district, right? so that's what you did. you went to this person, a magistrate. >> no, that is not what we did. we went to the district court. it is a slightly different problem, justice breyer.
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i can clear it up. there are two angles. the most basic is the restored communications act itself as a jurisdictional provision that allows the government to go to a variety of places to get warrants. he can go to the district where the crime is being investigated and that court has nationwide authority. we did that. this is an investigation being conducted none of -- >> second question, maybe it is not this case but what happens if you go to microsoft and you ask for something records that are in italy and in fact, italy does have a lot, we imagine, -- says absolutely no bank records can be taken by person without special consideration. what happens then? >> it is a common problem. and so what is the answer? >> the court conducts an
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analysis. they look to the statement of foreign relations. bags so the answer is what should be done in such >> so the answer is what should be done in such a case is you go to the judge and say, judge i want you oflook at the factors perhaps there is agreement about what should be done. this new law proposes that. >> i think what is more radical is that microsoft's position is that no court ever gets to ask the question. at the data is stored overseas, where out of luck. we cannot even ask for in order to require its production. they have not even certified it would violate foreign law to comply with the order we have obtained in this case. buted you are a great -- you are agreeing that they ityuld conduct a com
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analysis? when would it occur? procuredthe government an order as it seeks to apply sanctions on the party for noncompliance. that is what we used in a 1958 decision that squarely post the question of whether party of her home a u.s. court had jurisdiction could be ordered to produce documents that were located in switzerland if swiss law had a blocking statute. of court had a great deal problem with analysis that took into account possible templates with foreign law. that framework was applied by lower courts when they encountered grand jury subpoenas seeking financial information located in foreign states. there is nothing new about this problem.
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it is a problem the courts have been grappling with for decades. what is more remarkable, it has never come up under the stored .ommunications act we've had no protests before or after microsoft and no litigation before or after microsoft that said this order would violate foreign law. >> me i take you back to the language of the foreign statute? most of the language in your brief focuses on 2703. >> 2701 protects against hackers. it would reach for and conduct that hacked into a computer in the united states.
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>> the computer is here but hacker -- more difficultch statute. we have not taken a position in this court. it prohibits certain divulges citizen by certain providers. we have been willing to presume for purposes of this case that its purpose mirrors 2703 and is only on domestic disclosures but that puts us in the same position as microsoft with one difference. microsoft's theory is that since storage is the only thing that counts, to disclose that information, salad, do anything what they want free of u.s. law. to only thing microsoft adds that laws that the only person who cannot get it is the united states. we think that is run in the court should reverse that judgment. >> thank you counsel. mr. rosenkranz?
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>> mr. chief justice and may it please the court's. is stored communications act limited to the united states. of the government wants to use the act to unilaterally reach into a foreign land to search import private customer correspondence physically stored in a digital computer is protected by foreign law. that is a scenario -- >> correct me if it is incorrect, but we are told until this very case microsoft was complying with these disclosure orders. this case is the first time it objected. but there were past efforts of the same kind and microsoft disclosed the contents of the communications. is that so? >> yes your honor. i want to make sure the court
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understands this is a new phenomenon. this whole notion of crowd storage and another -- cloud storage in another country. we did not do it until 2010. so the fact that we analyzed our legal obligations and realized this is actually annexed next her territorial act unauthorized by the united states government. the fact that we were sober-minded against it -- about it should not be held against us. are assuming the answer to the question. the government's position as it is not an extraterritorial act. going to washington and same, you have to hand this over to us. it is not the governments fault it is located overseas. i suppose the government does not here. just like any other subpoena. it could be any other evidence. if there is a particular objection by the government,
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where the information is located, they are free to raise that and the government will have to deal with that but i gather that is not the situation here. >> it is the situation here. >> let me answer the question directly. the reason this is an extraterritorial act goes right a the heart of why we have presumption against extraterritoriality. no one disputes that countries across the world believe they have the sovereignty and the sovereign right to pass their own laws governing the access to email storage on their soil. here we are reaching into their land and imposing our u.s. position on access to email on their soil. >> why should we have a binary choice between the location of the data and the location of the disclosure? aren't there some other factors?
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lives?hey email where the service provider has its headquarters? thisre we forced into binary choice? >> that as a consequence to this analysis which no one is challenging. i suggest you have to figure out is. the focuses -- focus no one is arguing for any focus other than the government argument the focuses on disclosure and our argument that it focuses on storage. i want to be sure to get to that argument. if you look at the statute, the focus is on the storage. this is the stored communications act. at the most basic level, that is what the focuses and it is more specifically on securing communications in storage. congress confronted this brave
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new world. people entrusting their communications to third. storage providers. it wanted to make sure americans felt comfortable putting their communications there. troubles it would be good of congress enacted legislation to modernize this, but in the interim something has to be done. what happens in this situation if there is an american citizen being investigated for crimes ,ommitted in the united states the government chose rubble cause that -- probable cause there is evidence of this crime and emails that are in the possession of an american internet service provider and they have an urgent need for the information but the provider has chosen to store the data overseas and in fact in some
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instances, has actually broken it up into shards so to stored not just in one foreign country but in a number of foreign countries? what happens in that situation? there is no way in which the information can be obtained n-latsby pursuing against multiple countries that would take many months, maybe many years? what happens? >> that is not, certainly in so far as this record is concerned, or any record before the court is concerned what actually happens. no one actually breaks up email into shards, certainly not in this case. that is not, it turns out, what google does either. excuse me -- that is not with the other service provider does either in the context of these cases that are being -- >> we were told that is what gmail does. that is not correct? >> no, that is not correct.
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>> the service provider has chosen to stored overseas. there's no way to get the information other than these very time-consuming procedures? that is the way to get the and for -- the way to get the information, if it is urgent to get the government, the other governments respond urgently. parts in my mind. one is the language which i will have to work my way through. you heard the answer. one is a practical way of dealing with foreign law. the government suggested what is impractical about this in any situation, we are seeing what microsoft thinks as a problem because of foreign law which might forbid it for a variety of reasons.
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goes to the magistrate and says, there is a problem here because of the law of the countries. because of this, because of that. the magistrate takes into account. that simes to me like maybe congress will pass it and we will have standards which will be much more helpful. but even with that, what is wrong with that? >> the problem is that is not the statute congress passed. the statute congress passes a statute that does not call for of --ort >> you are giving a conceptual answer which i think is fine, but i want to know if the language permits it, can we read this statute to adapt to the if we can,ition and then should we do it that way? the cousin would be practical. everybody would get a fair shot.
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you take for and interests into account. maybe you use standards that they say is not enough but they do not pose what we should not use. you see my question? your question and the answer is that is not the statute congress wrote and the job of this court is to interpret the statute congress wrote rather than innovating and adopting its own new standard. by the way, the cloud act that has gotten some conversation this morning does have various factors that might be weighed. that is congress is decision if congress wants to do that if congress applies it under certain conditions. >> under this act, could you voluntarily disclose to the government or would that be a violation of 2702? >> it would not be a violation
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of 2702 of we voluntarily did something but it would be a violation of our obligations to our customers. >> if that is so, why can't the government just obtain -- question. another big its is a statute in which if was where the government used a warned, subpoena could not reach a lot of the emails. a subpoena would not reach emails that are in storage for less than 180 days. under a sixth circuit decision it could not reach them alone, that as individuals -- >> could not voluntarily disclose -- >> i'm sorry -- >> it seems odd you could voluntarily disclose, they could not ask for a subpoena? that does not quite mesh, does it? >> if we voluntarily disclosed, it would be a violation of our
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obligations to our customer and also by the way it would be a violation of european law. i want to backup. after 180 days the government could get this material as a subpoena? >> absolutely not. i agree you -- i agree with you that is what the statute says but it raises the exact same questions of extraterritoriality. the only thing we would not be able to do is rely on the warrant of the territorial implications but all of our other answers would be the same. the truth is, -- >> what actions would microsoft extraterritoriality -- extraterritoriality to comply with the order? what would microsoft have to do outside of the united states? >> let's start with fact that
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these emails are stored outside the united states. they are stored in ireland and the government is asking us to go fetch them from ireland. they are subject to the tensions in ireland. so what happens in ireland -- protections in ireland. what happens in ireland is a remote control. working a mechanism where these emails are stored on a hard drive enough facility under the text in a form off and a reader, which is a physical piece of hardware, reads the digital numbers off of it which are also physical manifestation. it is then packaged up and it runs through ireland on hard wires and over the atlantic. this is quintessentially an extraterritorial act. there are a lot of complicated pointons but the decisive
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and the point justice gorsuch was making earlier is that the emails are stored in ireland and the dea is forcing us to fetch them. >> i'm sorry. perhaps it is my technological ignorance, how is it in a lock box? if i'm trying to imagine this, what has to happen? i press a button in the u.s. and directly, the information in ireland? or do something have to happen in ireland? >> something has to happen in ireland. these emails exist only in ireland. what happens -- insomething has to happen washington, then obviously something happens in ireland on a computer. to some person have to be there?
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>> a human being does not have to do it. it is a robot. if you sent a robot into a form meant to seize evidence, it would certainly implicate foreign interests. let me draw out this example. >> now, i guess my imagination is running wild. [laughter] >> who tells the robot what to do and what does the robot do? robotuman being tells the -- since the robot instructions. the computer scientist, amicus briefs, this is an detail. what happens then? it interfaces with the hardware computer in a hardware facility. it spins a disk. it looks for a email on that disc after verifying certain protocols. it reads physical manifestations on magnets of the ones and zeros which are like letters in the alphabet.
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it tosses them onto another desk. it then safeguards them and sends them back here. andhe dea set at a computer washington, d.c., and hacked into our servers in ireland, everyone agrees that is a search and seizure in ireland. does what wasent described, executes a search warrant, pushes us aside from the operator and says, i will take it from here, that search .ould be in ireland although it is happening now is the government is requiring us to do something it would want to do -- >> the government could issue a warrant to go ahead and do exactly that in redmond? >> the government could issue a warrant i believe -- >> step aside and do the search and redmond? could the government do that outside of the stored communications act benchmark could the government issue a
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classic search warrant to go into redmond and conduct research and redmond? that it would be an extraterritorial search, it would therefore be illegal but if the government did that there is no question that search is going on in ireland. >> what could you do about it? >> we could sue the government and said they could not come onto our property and engage in these extraterritorial acts. >> my point here -- -- never mind -- >> there is nothing under your position that prevents microsoft from storing united states communications. everyone of them, canada, mexico, anywhere else and telling their customers -- don't worry if they are government wants access to your communications that won't be able to get of unless they go through this mlat procedure which is costly and time for consuming. time
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could you provide that service to your customer? >> is it theoretically possible? yes. but it won't happen. the reason is there are 2 million active customers here in the united states. in what way is there service seriously compromised if the server is overseas? >> there is a basic physical property at issue here that underscores this is not just some random act of putting a males in one place or another. there is a physical phenomenon that actually slows down the email service. >> so they have to wait a little longer. but they are protected from any government intrusion into email communications. >> these facilities are half $1 billion was a ladies. we build them in order to make our customers get the best
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service. even if a fraction of a second --ay >> you might gain customers if you can assure them no matter what happens, the government will not be able to get access to their emails. >> your honor, this is the tailwagging the dog problem. we have 200 million customers relying on the best service here in the united states that can possibly be brought. are public,tistics 60,000 requests for information in the united states. the percentage of those that relates to emails abroad is 54 of them out of 60,000. if 99.9% -- >> my basic point, i'm not sure if you have answered it is there is nothing that prevents microsoft -- in other words, any mail from me to somebody on the other side of the building that
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is going to be stored somewhere else is going to be protected from disclosure of people, the government, wanted access for law enforcement, a criminal investigation where they had a warrant establishing probable cause. from here to the next lot, that is the ticket from disclosure to the government. block, here to the next that is protected from disclosure to the government. >> your honor, if people do not want their emails to be seized by the government they do not services.oft whether they are in canada or mexico. because those are available by mlat. they use services sold specifically with the promise u.s. presenceo and therefore you can trust us to keep it under lock and key from the u.s. government. by the way, you probably all
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have cell phones with this feature. it is a feature that scrambles your instant messaging and govet you have cell phones with this feature, one that scrambles instant messaging in a way that no government can get their hands on. it is not like this is a device that is a phil full through microsoft services. lawsople want to break the and put their emails outside the reach of government, they would not. >> is a true we do not know the nationality of the individual with this account? >> that is true. >> if this person is not irish and ireland played no component in this decision and there was nothing ireland could do to move
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it, it is difficult for me to see what the ireland interest is. >> they are the same as any sovereign who protects information that is stored in the domain. we protect information stored within the united states and do not actually care whose information it is because we the laws that guard information. talkguess the point is, we about this information that physically exists on one or more computers somewhere, but it does not have a presence anywhere, in the sense that a physical object does. providerset service can put it anywhere and move it around at will. the idea is strained. would you agree? >> i would not. i disagree with the premise.
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emails have a physical presence and they are on a hard drive. are they movable? yes. .etters are foreign laws are, by the way, robust. ofng back to the question focus, of the thread that ties together the provisions and the common thread, that is stored communications in electronic storage and that ties the provisions together and is the focus. commondo we need a thread? why don't we ask what congress was trying to do?
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focused on that, i would say that the government agrees that is not what you are supposed to do and you are supposed to look at how it relates to other provisions. the focus is still on protecting emails from government intrusion. >> and how do we know? it seems that we have a choice to between two things. with the world and you are saying the opposite, that congress was regulating the disclosure anywhere in the world of electronic communications stored in the united states and i do not know how to pick between the two from the statute. >> if i can give you a couple of congress passed this to
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limit law enforcement access to category emails and that is the emails in electronic storage. they would lose all protection. 2703 and lawes enforcement already had access. the focus was on enhancing emails in electronic storage. backing up to the provisions, this is about securing communications that are sitting a brave new world
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congress is facing where electronic storage was say. focus, 2703 was required and congress put the heading in the act and it seems to me that the government may have a position that the statute focuses on disclosure come which takes place in washington and not in ireland. >> this goes back to the question. 2703 cannot be read in isolation. with >> this says: terry disclosure and that takes place in washington, not ireland. >> the answer is that the act was about protecting the
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communications that were in electronic storage and this aboutwith 2702 and it is -- is, as theat government has suggested, it is about making sure that the aretronic communications protected and this is an exception. >> i will ask a technical thing to help me. what i did was look at the byrant and it is signed james francis, magistrate judge
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of new york. and this fellver within b-1. >> yes, your honor. their, therethin is the authority to issue a that is how i got into the linguistic. what is the answer? what is the warrant? arrant.udge francis' w and there, yes. so, what is the answer?
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it says that francis has authority to issue the warrant to search for property in new york. >> i agree with you. warrants are territorial. >> you did not make much of a point of this in the brief. this cannot be that easy. >> i think we certainly try to make a point of that. >> if this information was in washington would that be because it is not in new york? that is the question. let's he would not be able to becausee warrant, but there is a nationwide ability to
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reach evidence within the united states, the warrants are not extra-territorial. by way of wrapping up, the government asks this court to grant an extraordinary power that is one that congress did not think it was granting law in 1986 and certainly did not intend to officer inery police sheriff's deputy anywhere in the country. back then, if the police needed to gather evidence from all over the world, they would have to engage with law enforcement and all of those countries, the internet makes it possible to now reach a lifetime of correspondence from billions of people all across the world. only congress can grant that power. points.s to ginsburg's think about the questions the
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court has wrestled with today, the architecture of providers and conversations about whether the -- where the internet is heading and conversations about whether this will kill the tech sector and how much of an international consensus there is about the sovereignty of data. these are all questions that only congress can answer. meanwhile, the job of the court is to defer to congress to take the path that is least likely to create international tensions and, if you try to tinker with that onlyut the tools congress has, what you are as likely to break the cloud as you are to fix it. if there are no further questions, i think the court for its attention and we respectfully request that the council affirms.
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>> two minutes. points.e two quick the technical point is that justice breyer, u.s. the authority in the district court. the authority of the magistrate 2703, whichfrom entitles a court of competent jurisdiction to issue the relevant warrant in this case and that is on page 6a. courtis a definition of a restriction in the appendix to the brief that defines this to include a magistrate judge that has jurisdiction over the offense and other basis. this is designed to expand the authority of courts. the second technical question was asked by kennedy on whether microsoft and voluntarily
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disclose this information to the government and it could not. far from making disclosures and one of the exceptions is that the government can proceed on the information. is looking to unilaterally disclose this to anyone. they order issued by the nets to it says that they have no obligation to produce information and, the substantive information, that does indeed focus on disclosure and not storage. 2703 requires disclosure on the variety of categories. with theit up disclosure and section is no cause of action for disclosing g saysrdance and section
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announcer: next, a case concerning free speech and minnesota's dress codes barring political badges and insignia. the outcome could impact similar laws in other states. one hour.argument is >> we will hear argument this morning in minnesota voters alliance versus mansky. allinnesota statute bans political expression to


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