Photo by Diego M. Radzinschi/ALM

The U.S. Supreme Court in October of last year agreed to rule on whether a search warrant requires Microsoft Corp. to provide the U.S. government with emails that are stored outside the country.

While the case revolves around the Redmond, Washington-based company, the far-reaching implications of allowing U.S. law enforcement to gain access to data stored elsewhere has prompted many major tech companies to sound off on the upcoming privacy showdown via amicus briefs.

The dispute began in 2013, when federal agents, relying on the Stored Communications Act, directed Microsoft to provide information about a specific user's email account. While some info was handed over, Microsoft refused to provide emails that were stored overseas, in Ireland. The company has since maintained that the SCA, a law enacted in 1986, was not meant to apply to communications overseas and that Congress, not the courts, is the proper forum to address the issue.

Companies, business groups and members of Congress came out in support of Microsoft by way of more than 20 briefs. One brief filed Thursday by International Business Machines Corp. and signed by four IBM attorneys, including the company's senior vice president of legal and regulatory affairs and general counsel, Michelle Browdy, warns that allowing the government access to data stored abroad could have negative effects.

And these potential ramifications could have a massive impact on businesses, said Browdy in an email to Corporate Counsel. “IBM has consistently urged that governments use proper legal channels when seeking data for law enforcement purposes,” she wrote. “Compelling disclosure of cloud data stored abroad without following proper legal process could well have unintended and negative consequences on business enterprises in the United States and around the world.”

While the case involves access to an individual's data, Browdy explained that “cloud data storage is also a transformative and critical technology for businesses worldwide.” She added: “Changes in technology move faster than changes in the law, and when the law addresses new technology it must consider not only the immediate facts of the case at bar, but also the potential implications that a legal decision may have more broadly.”

More major tech companies, including Amazon.com Inc., Facebook Inc. and Apple Inc., weighed in through another amicus brief. This group brief, also filed Thursday, points out that because the “current technological landscape sits in stark contrast to the background against which the SCA was enacted,” Congress could not possibly have contemplated that companies would be able to store user information all over the world and then would be able to provide that to U.S. law enforcement upon request. Thus, according to the group, the SCA has no extraterritorial reach.

Like Microsoft, the 14 companies that added their names to the brief feel Congress is better suited than the courts to deal with the issue of cross-border data searches.

As for the implications of a ruling against Microsoft, the brief points out that requiring Microsoft to hand over communications stored outside the U.S. could not only create disaccord between the U.S. and other nations, but may also lead to a response in kind from foreign governments.

“Every nation founded on democratic principles has a strong and legitimate interest in ensuring that the security and privacy of the people it is charged with protecting are not improperly or unduly invaded,” the brief reads. “Failure to accommodate that legitimate sovereign interest threatens to provoke dangerous reciprocation by foreign governments—at great potential cost to U.S. citizens and service providers.”

Following the spate of briefs, Microsoft president and chief legal officer Brad Smith pointed to the diverse support for his company's position in a blog post Friday. He also noted that those parties weighing in on both sides of the case recognize the need for solutions. “But they need to be crafted with a scalpel, not a meat cleaver,” he wrote.