- - Monday, July 18, 2016


U.S. Supreme Court Justice Louis D. Brandeis explained in Olmstead v. United States (1928) that, “[The makers of our Constitution] conferred, as against the Government, the right to be let alone—the most comprehensive of rights and the right most valued by civilized men.”

That understanding has withered as the nation has entered an era of permanent post-9/11 global warfare featuring suspicion-less surveillance of hundreds of millions of the “not-yet-guilty” under Executive Order 12333 or otherwise.

The surveillance state, however, encountered at least a speed bump last week by a panel of the United States Court of Appeals for the Second Circuit in Microsoft Corporation v. United States. There, the court refused to endorse a psychedelic interpretation of the 1986 Stored Communications Act (SCA) to authorize extraterritorial search warrants to seize the contents of customer emails stored exclusively on foreign servers in a narcotics trafficking investigation. In particular, the court denied that the SCA authorized the government to obtain a warrant requiring Microsoft to retrieve and share the contents of a customer’s emails stored in Ireland.

The case carries broader significance.

Electronic technology changes at warp speed. Congress, on the other hand, typically idles in the horse latitudes. Statutes regulating electronic privacy are routinely museum pieces soon after enactment. Thus, courts are regularly confounded in applying such statutes to circumstances beyond the wildest imagination of the enacting legislators. The standard canon of statutory construction, i.e., congressional intent, is useless when Members of the enacting Congress never thought about the matter sub judice at any level of abstraction. The Microsoft litigation is emblematic.

The SCA was enacted in 1986 when the World Wide Web was in its pre-embryonic stage. A globally-connected Internet available to the general public for routine email and other uses was not foreseen by Members and could not have been foreseen even by a Nostradamus. The express congressional objective in enacting the SCA was “to extend to electronic records privacy protections analogous to those provided by the Fourth Amendment.” According to the Supreme Court’s decision in Katz v. United States (1967) and its progeny, however, Fourth Amendment protections are not static. They protect expectations of privacy which society is willing to accept as reasonable. And as the Internet has become the primary form of communication for a growing number of Americans, objectively reasonable expectations of electronic privacy from government snooping have expanded accordingly.

The 1986 Congress that enacted the SCA, however, did not foresee this Internet juggernaut. The statutory text only awkwardly or elliptically addresses electronic privacy issues that have emerged in 2016 thirty calendar years and multiple technological revolutions later. The specific question presented in Microsoft was whether the 1986 statute authorized extraterritorial search warrants to seize email content stored abroad. The text was uninformative because it was written long before the development of cloud technology and global electronic networks that store information.

In these recurring cases where congressional intent is a fiction, the courts should be guided by fundamental constitutional principles.

They celebrate liberty as inherently good. Conversely, government encroachments are inherently disfavored. They understand that the evils of excessive government power dwarf the evils of private wrongdoing. Thus, all statutory ambiguities that bear on privacy should be resolved against the government and in favor of the individual. The All Writs Act of 1789, for instance, should not be inventively interpreted more than two centuries later to authorize court directives to private companies like Apple to develop software to enable hacking into an iPhone used by suspected criminals to facilitate execution of search warrants.

As for Congress, legislation authorizing government encroachments on privacy should never be enacted without demonstrable proof of necessity to detect or to deter very serious crimes. Congress should never forget that investigations, simpliciter, can destroy individual liberty by placing targets under a dark cloud for protracted periods at great expense.

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