When government oversteps its authority and threatens constitutional rights for both manufacturers and every American, the National Association of Manufacturers (NAM) gets involved. The Manufacturer's Center for Legal Action will be filing an amicus brief in the Second Circuit, encouraging the court to overrule a federal district court's decision that would enable the U.S. government to obtain private records stored in a cloud server outside the United States. This issue is not just about manufacturing and business, but more importantly, it is about protecting constitutional guarantees against unlawful search and seizure and invasion of privacy.
This case began when U.S. law enforcement, while conducting a narcotics investigation, sent a search warrant ordering Microsoft to turn over customer e-mails stored in a data center located in Ireland. When Microsoft challenged the warrant at the trial level, the district court ruled in favor of the government despite abundant judicial precedent that prohibits search and seizure of private information outside of the United States.
Warrants to search private records are a function of the U.S. legal system but have no application in foreign countries. Instead, the government must go through the proper treaties and collaborate with foreign governments to access private information abroad. Domestically, the government has tried to bypass these procedural roadblocks by claiming that e-mails stored in a cloud are no longer private, but rather business records of the company that owns the cloud server.
The government has adopted this strategy because business records have less legal protection than private records. The records in question are private e-mails in a password-protected account. Despite the change in technology, the same high level of legal protection should apply to private digital records as it does to paper records. The Supreme Court recently reiterated in United States v. Miller that the government cannot search the contents of a cell phone without a warrant because it contains private records (e-mails, text messages, pictures, bank account information, etc.).
If the government succeeds in accessing the e-mails at Microsoft's Ireland facility, it will embolden other foreign countries to issue warrants for private e-mails stored in the United States. This exposes every American to a potential invasion of privacy. Additionally, if allowed to stand, the lower court's decision will discourage foreign entities from contracting with U.S. companies. Certain foreign companies already fear that contracting with U.S. companies will leave them more vulnerable to National Security Agency information gathering. Finally, this puts U.S. manufacturers in the untenable position of choosing which jurisdiction of laws to follow, exposing them to further uncertainty in their business processes.
The NAM will continue to fight to uphold constitutional liberties and promote a robust relationship between U.S. and foreign manufacturers. The government cannot be allowed to disregard judicial precedent and undermine the Constitution.