Microsoft (Ireland) raises a difficult policy question about when and how U.S. law enforcement may access cross-border data. Unfortunately, the Supreme Court is seemingly set to answer that difficult question by choosing one of two bad options.
In search of an intermediate solution, many have suggested that we look to Congress. Legislative action may be desirable, but it seems risky to assume that Congress will act. Yet we might be able to obtain some of the benefits of lawmaking another way: the Federal Rules of Criminal Procedure.
The Stored Communications Act (SCA) incorporates by reference portions of the Federal Rules of Criminal Procedure. The Federal Rules, I argue, can resolve this case. More importantly, no matter what the Supreme Court decides in this case, the formal process of amending the Federal Rules offers a pathway to an intermediate solution going forward.
The SCA, the Federal Rules, and Microsoft (Ireland)
First, the Federal Rules of Criminal Procedure help resolve the Microsoft (Ireland) case itself.
Section 2703(a) of the SCA authorizes a government entity to require the disclosure of content information “pursuant to a warrant issued using the procedures described in the Federal Rules of Criminal Procedure.” This provision has been understood to refer to the warrant requirements in Federal Rule of Criminal Procedure 41. So when a federal magistrate judge issues a SCA warrant, she looks to Rule 41 for the procedures.
The parties in Microsoft (Ireland) seem to agree about two issues related to the SCA and Rule 41. First, everyone agrees that the “procedures described” in Rule 41 also apply to SCA warrants unless other parts of the SCA contradict them. Second, subdivision (b) of Rule 41 lays out rules for venue. Microsoft and the Government seem to agree that the warrant in this case was inconsistent with Rule 41(b)’s venue limits.
If the Government agrees that Rule 41 would not support the warrant at issue, then why are we in the Supreme Court? Two reasons. First, the Government suggests that a 2001 amendment to the SCA makes Rule 41’s venue provisions irrelevant. Second, the Government argues that the venue provisions of Rule 41 are not the “procedures described” in that Rule, and thus they are not incorporated by the SCA.
The first issue turns on the effect of a 2001 amendment to the SCA. The amendment in question expanded the reach of SCA warrants beyond Rule 41’s limits, but it did not expressly authorize a warrant under the circumstances of this case. The Government argues that the amendment displaces all of the venue provisions in Rule 41, though it concedes that other aspects of the rule still apply. In an earlier stage of the litigation, Microsoft argued that the amendment should be read to displace only those provisions with which it conflicts. I could see a court ruling in favor of the Government, but I disagree. The SCA originally incorporated Rule 41, so the best reading of a statutory amendment would be that it displaces only the parts of Rule 41 to which it speaks—not all of the requirements that happen to fall in the same part of the Rule.
The second issue asks whether the SCA’s reference to “procedures described” includes Rule 41’s limitations on venue. The Government says no, instead arguing that only the technical aspects of Rule 41 are incorporated into the SCA. Again, I could see a court agreeing with the Government that the term “procedures” excludes venue, and at least one court has commented approvingly of this distinction. But the simpler and better reading is that the “procedures described” in Rule 41 include its venue provisions. And, as just mentioned, Congress knows how to displace particular features of Rule 41 if it wanted to do so.
In short, therefore, Microsoft (Ireland) should turn on Rule 41, and if it does, I think this warrant was improperly issued.
The SCA, the Federal Rules, and a Way Forward
Whether or not the Supreme Court accepts the foregoing argument, the Court can use its authority over Federal Rules amendments to craft an intermediate solution going forward.
Imagine first that the Court accepts my argument and rules in favor of Microsoft based on Rule 41. Some boosters of Microsoft’s position suggest that such a decision could be an implicit (if not an explicit) nudge to Congress to address warrants for data stored overseas. But waiting for Congress to act is a risky strategy. Instead, the Supreme Court could immediately signal its interest in updating Rule 41(b)’s venue limitations through an amendment to the Federal Rules.
Rulemaking also would be useful if the Court ruled for the Government. If the Court concluded that the SCA does not incorporate Rule 41’s venue provisions—which, I believe, would be a necessary condition of a decision for the Government—then the rulemaking process could update the “procedures” of Rule 41. These “procedures” could add checks on the warrant authority to protect important interests at issue in cases like this one.
Either way, as long as Rule 41’s “procedures” are in the SCA, then the rulemaking process has a role in managing cross-border data collection. Moreover, there is a strong functional case in favor of addressing these issues through rulemaking rather than in a single adjudication in the Supreme Court.
For the unfamiliar, the Federal Rules of Criminal Procedure are authorized and amended pursuant to the Rules Enabling Act of 1934 (REA). In brief, a distinguished advisory committee considers rule changes, solicits public comment, and proposes rule amendments. Those proposals wind their way to the Supreme Court, which has the authority to adopt them. But amendments do not go into effect immediately—they must be transmitted to Congress, and there is a six-month waiting period in which Congress may intervene.
This rulemaking process is well-suited to resolve challenging questions related to criminal procedure. For one thing, rulemaking necessarily invites more perspectives than a one-off adjudication could accommodate. The current Advisory Committee on Criminal Rules includes federal and state judges, a DOJ representative, a Federal Defender, a legal academic, and two members of the private bar. The Advisory Committee also routinely holds public hearings and accepts public comments.
In addition, the outputs of rulemaking can be much more flexible than the binary result likely to come from a single adjudication. That is particular relevant when, as here, the best answer requires more nuance than “affirm” or “reverse.”
Of course, the Supreme Court is the ultimate arbiter of which Federal Rules amendments are adopted. But by relying on the rulemaking process, the Court will be able to reach its conclusions with the best information available and it will have done so through an open and transparent process authorized by Congress. If Congress is unhappy with the new rules, it has six months to step in. In this way, the rulemaking process can encourage congressional action but also can provide a considered solution if Congress does not act.