Fall 2017 saw a major privacy case with international implications reach the U.S. Supreme Court this term, Carpenter v. United States. Now a second such case pits the Government against Big Tech in United States v. Microsoft. Carpenter is a criminal case involving federal seizure of cell phone location data from service providers. Arising under the “reasonable grounds” provision of the Stored Communications Act (SCA), the case accentuates Americans’ lack of constitutional protection for personal data in third-party hands, in contrast with emerging global privacy norms. The second major privacy case headed for Supreme Court decision in 2018 also arises under the SCA, involves criminal investigation and new technology, and implicates collision between the third-party doctrine and European privacy law. In United States v. Microsoft, however, the implications for international law loom larger.
Richard J. Peltz-Steele, Carpenter Privacy Case Vexes Justices, While Tech Giant Microsoft Battles Government in Second U.S. Supreme Court Privacy Case with International Implications, Int'l L., Privacy, Cybersecurity & Digital Rts Committee Q. Newsl. (Am. Bar Ass'n), Winter 2017.