This week, the Competitive Enterprise Institute (CEI) filed a Supreme Court amicus brief in support of the respondent in United States v. Microsoft. The brief argues that the federal government should not be able to access consumers’ private data without probable cause and a valid warrant. Cosigners of the brief include the Cato Institute, the Reason Foundation, TechFreedom, and the American Consumer Institute Center for Citizen Research.
“When people use Microsoft’s or other provider’s ‘cloud’ services, they do so under the protection of privacy policies and terms of service documents,” said online privacy expert and CEI Executive Vice President Jim Harper. “These contracts make communications and data the property of the customer, subject to narrow exceptions. In the Stored Communications Act, Congress rightly required a warrant to access this information. In this case, the U.S. government is attempting to use a warrant invalidly to retrieve data from outside the United States, which Congress did not authorize.”
According to the brief, it’s important that the Court recognize when terms of service and privacy policies give property rights in data to consumers. As people share more and more of their data with third parties, such as Internet Service Providers and banks, consumers’ property rights in data form the basis of their rights against unreasonable search and seizure. The government should not be able to use a “third-party subpoena” to gather people’s data without meeting the probable cause standard required for warrants.
>> Read the amicus brief here.