Microsoft office in Washington, DC, metro area. Credit: Mike Scarcella/ NLJ

Lawyers for Microsoft Corp. told the U.S. Supreme Court on Tuesday that they concur with the U.S. Justice Department that their dispute over law enforcement access to emails stored outside the country is now moot.

In a brief filed with the court in the case United States v. Microsoft, Orrick, Herrington & Sutcliffe partner E. Joshua Rosenkranz said the Justice Department's withdrawal of the original warrant seeking emails stored in Ireland and sent by a suspected drug dealer in the United States “moots this case.”

Rosenkranz also said Microsoft did not oppose the government's request that the ruling by the U.S. Court of Appeals for the Second Circuit—siding with the tech company—should be vacated. But Microsoft hedged somewhat on the handling of a warrant the government issued under the CLOUD Act, the new law that clarifies the circumstances when U.S. law enforcement agencies can access data overseas.

“Microsoft will, in the ordinary course, evaluate the new warrant as it evaluates all warrants that law-enforcement entities serve on it,” Rosenkranz told the justices. Under the new law, passed and signed on March 23 as the Supreme Court was considering the case, the company could challenge the warrant on grounds of comity, possibly generating further litigation.

With the filing of the Microsoft brief, it is now up to the justices to decide whether to dismiss the case before it as moot, an outcome that appears likely. The Justice Department filed its brief suggesting mootness on March 31.

The case evolved into a major test of digital privacy and the extraterritorial reach of U.S. criminal law. But it also may have helped push Congress to pass legislation to resolve the issue, which both sides agreed should be done through legislation rather than litigation. Passage of the new law, in effect, made the litigation unnecessary.

“Microsoft has argued from the beginning of this case that Congress is the proper branch to update the Electronic Communications Privacy Act of 1986,” Rosenkranz wrote. “With the CLOUD Act, Congress has now enacted a nuanced legislative scheme that both creates a modern legal framework for law-enforcement access to data across borders and expressly incentivizes the negotiation of new international agreements that balance legitimate law-enforcement interests, individual privacy rights, and foreign sovereignty.”

In a blog post Tuesday, Microsoft president and chief legal officer Brad Smith said, “Our goal has always been not to make repeated visits to court to litigate contentious propositions but to establish new international rules that will avoid legal conflicts and advance privacy rights and law enforcement needs together.”

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