TMI staff report, 4-5-18
The U.S. Justice Dept. has asked the U.S. Supreme Court to dismiss as moot U.S. v. Microsoft, dealing with the government’s right to information stored on servers in foreign countries, owing to passage of the CLOUD Act by Congress on March 23.
The Justice Dept. filed a Motion to Vacate the Judgment of the Court of Appeals and Remand the Case with Directions to Dismiss as Moot on March 31. The government’s motion argued that the Microsoft case is moot as a result of the CLOUD Act because the Act governs the warrant originally issued to Microsoft in this case and requires Microsoft to produce the information requested under the warrant regardless of where it is stored. In addition, the government argued that Microsoft is moot because the government has obtained a new warrant under the CLOUD Act requiring Microsoft to produce the same information requested in the original warrant.
The government also argued that the Court should vacate the Second Circuit’s decision to eliminate the risk that the opinion would create uncertainty in future Second Circuit cases concerning extraterritoriality, the Fourth Amendment, or subpoenas, according to Caitlin Vogus, staff attorney for Reporters Committee for Freedom of the Press.
Vogus said the CLOUD Act amends the Stored Communications Act (SCA) to provide that a service provider responding to a Section 2703 order must produce communications, records, or other information within the provider’s possession, custody, or control, “regardless of whether such communication, record, or other information is located within or outside the United States.” The SCA had been the point of contention in Microsoft’s challenge to the government’s warrant.
Microsoft agreed that the case should be rendered moot, filing a Response to the United State’s Motion to Vacate and Remand with Directions to Dismiss as Moot on April 3. Microsoft said it does not oppose the government’s motion to vacate the Second Circuit’s judgment, as long as the Court also vacates the judgment of the magistrate judge and the district court’s judgment adopting it.
The Media Institute had joined an amicus brief in support of Microsoft’s position in the case before the Supreme Court.