Andrew Woods writes:
The Second Circuit heard oral argument Wednesday in Microsoft’s dispute with the Department of Justice over access to emails stored in Ireland. (Background on the case is here, and there is an enlightening exchange between Orin Kerr and Jen Daskal here and here.) Much of the scholarly commentary so far has been narrowly focused on statutory interpretation questions regarding the Stored Communications Act, which is part of the Electronic Communications Privacy Act (ECPA). I want to take up another aspect of the case: the prevailing sense that stakes are sky high if Microsoft loses. Microsoft General Counsel Brad Smith captured this view well when he noted that hanging in the balance are: “the future of the Internet, privacy, respect for borders, and public safety.” That is a big claim, and the media has largely embraced it. But is it true?
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