Supreme court justices are a big deal. In fact, they may be the very reason Trump was elected.
Many people voted for Trump simply because they knew what kind of Justice Hillary would appoint. No matter how you felt about Trump, conservatives knew he would do better than Hillary on the courts.
Newly minted Trump appointee, Supreme Court Justice Neil Gorsuch’s first test is coming soon.
I hope new Supreme Court Justice Neil Gorsuch is ready to go, because it looks like privacy might be one of the first issues he gets to rule upon. From Hillary’s servers to Russian eavesdropping, Snowden or WikiLeas, the privacy of the average American citizen is becoming a big deal.
It looks like a case involving tech giant Microsoft versus the US Government is headed the high court’s way. Privacy is a rubber meets the road issue for many, and will highlight exactly who Judge Gorsuch is going to be as a justice. Will he be the next Antonin Scalia, or will he slide down the slippery slope to mediocrity and ultimately anonymity? Will Gorsuch be a strong advocate for the 4th Amendment right to privacy in the mold of Justice Antonin Scalia, or will he be give government more leeway to pierce privacy?
LawFare blog post from July 15, 2016 describes the case:
The Second Circuit Court of Appeals ruled against the United States Government in the case Microsoft v. United States, stating that the government cannot compel Microsoft, or other companies, to turn over customer emails stored on servers outside the United States. Here’s a brief summary of the opinion.
The case hinged on the question of whether Section 2703(a) of the Stored Communications Act (SCA), the provision under which the government sought and received a search warrant for the email account, applies extraterritorially. The court, reversing the federal district court in the Southern District of New York, ultimately ruled that it does not.
Coming to a Supreme Court near you this fall, unless Congress passes legislation and gets the president to sign on extending warrants to foreign held data. It would be great if Congress would settle the issue, but will they? The balance between security and privacy is a precarious one. Leaving it to the bench to decide is risky. If the decision goes the wrong way, it would destroy a business model that has made the American tech sector of the economy great for generations.
If the courts end up resolving the matter and allow warrants to apply to data abroad it will cause three negative consequences in the reach of warrants, to our global economy and the state of the law governing data collection.
First, it would mean that American search warrants have international reach. Inherently, there are many problems with that conclusion. The main problem is that the only way to enforce a US warrant abroad would be through the might of our armed forces. It may be possible to simply threaten a hostile action as a means to force a foreign government to give up data, but in reality, it is not a sustainable precedent. Warrants are limited to the territory where the courts have jurisdiction and it makes no sense to think that a U.S. court could serve a warrant in Australia or Pakistan without the foreign government allowing it.
Second, we live in a global economy. Individuals in the United States and abroad need confidence that their personal confidential information is safe. The 4th Amendment to the constitution is sacrosanct. If the United States allows warrants to reach foreign nations, then what’s to stop a Russian “warrant” from seizing the data of an American citizen without the U.S. government’s consent? People trust that the technology they have chosen is going to protect them.
If other nations become worried that citizens’ data could be seized by U.S. officials, they will be motivated to encourage companies to hide data technology from the prying eyes of the U.S. This is called “data localization” and would destroy the business model that has allowed Google, Microsoft and Apple to flourish. The cloud as we know it would evaporate. We would be sent back to a world of thumb drives and larger computers with unlimited memory.
Bringing data storage back to earth will cause technology to regress for the first time in decades. Government and the courts stand at a precipice. Will they protect freedom or crush the lap top industry? Virtually pricing middle income and poor people out of the market by making data storage bulky and not as easy to transport? In other words, the fate of hand held devices and most all portable technology could come before the Supreme Court if Congress fails to act.
Finally, it is clear that the law needs to be modernized. Our laws are outdated and need to be updated to reflect the world we live in today. If the court rules that American warrants can reach overseas, it could be the beginning of the end for the continued advances in technology. We must stay true to the 4th Amendment and protect the freedoms that matter most, no matter what type of technology we are using.
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