Microsoft, Ireland, and the Rest of the World

Publication Type: 
Other Writing
Publication Date: 
February 21, 2018

United States v. Microsoft will be practically significant for its effect on law enforcement’s ability to access data stored abroad, and it has the potential to be doctrinally significant as the latest in a line of recent cases including MorrisonKiobel, and RJR Nabisco in which the Supreme Court has finessed the presumption against extraterritoriality.

But these important issues in some ways mask the even broader significance of the case. While the Supreme Court is a perfectly reasonable venue for deciding the statutory interpretation question presented, it is a poor fit for addressing the bigger issues behind the courtroom clash: how do the powers of different states interact to govern cyberspace, and how should the balance between state and corporate power in cyberspace be struck? These are hard questions, and ones unlikely to be settled by statutory interpretation canons. Here, good canons may make bad law.

The fact that balance-of-power questions underlie the overt clash between Microsoft and the U.S. government becomes evident when examining the voices making themselves heard in the case. There are many, including civil society groupsU.S. states, and former government officials. But I want to focus on two types of actors, namely foreign sovereigns and tech companies.

Several foreign governments, including Ireland, the United Kingdom, and the European Commission, as well as the New Zealand Privacy Commissioner filed amicus briefs. All of the foreign sovereign briefs were filed in support of neither party, which is a somewhat unusual posture for foreign sovereign amici. As I have previously noted, of the 68 foreign sovereign amicus briefs filed from the 1978 Term through the 2013 Term, only four were filed in support of neither party; the rest chose a side. And in extraterritoriality cases, foreign sovereigns typically support whichever side opposes extraterritorial application of U.S. laws.

Read the full post at Just Security