Saturday, 16 December 2017
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Justices to Decide on Forcing Technology Firms to Provide Data Held Abroad


The government asked the full Second Circuit to rehear the case, but the court deadlocked by a 4-to-4 vote. In dissent, Judge José A. Cabranes wrote that the panel’s decision had restricted an investigative tool used thousands of times a year while failing to “serve any serious, legitimate, or substantial privacy interest.”

In urging the Supreme Court to hear the case, the Justice Department said nothing should turn on Microsoft’s business decision to store data abroad that it “can access domestically with the click of a computer mouse.” The panel’s ruling, the department’s brief said, “is causing immediate, grave, and ongoing harm to public safety, national security, and the enforcement of our laws.”

“Hundreds if not thousands of investigations of crimes — ranging from terrorism, to child pornography, to fraud — are being or will be hampered by the government’s inability to obtain electronic evidence,” the brief said.

In response, Microsoft told the justices that it is up to Congress to revise the 1986 law and noted that both houses have recently held hearings to consider overhauls.

A ruling upholding the warrant, the company warned, would embolden foreign countries to seek the emails of Americans stored in the United States.

Microsoft added that the Justice Department’s position posed a threat to technology companies by requiring them to choose between complying with a warrant and disobeying foreign laws.

“These conflicts can place U.S. companies in the untenable position of being forced to violate foreign privacy laws to comply with U.S. warrants,” the company’s brief said. “And the growing privacy concerns of customers around the world mean that granting U.S. law-enforcement agencies that broad authority would hamstring U.S. companies’ ability to compete in the multibillion-dollar cloud computing industry.”

The case is part of the broader clash between the technology industry and the federal government in the digital age. Apple, for instance, battled the F.B.I. over helping investigators break into a locked iPhone that had been used by a gunman in a mass shooting.

Looking at an American Express Practice

The Supreme Court also agreed to decide whether American Express can stop businesses from steering customers toward competing credit cards.

Last year, the Second Circuit ruled that the company had not violated antitrust laws by insisting in its contracts with merchants that they do nothing to encourage patrons to use other cards.

Retailers pay so-called swipe fees when customers use credit cards. American Express charges higher fees than Visa or Mastercard, meaning that merchants have good reason to prefer those other cards.

In 2010, the Justice Department and 17 states sued several credit card companies, saying that their steering practices had violated the antitrust laws. Visa and Mastercard settled, but American Express fought the case.

In 2015, Judge Nicholas G. Garaufis of the United States District Court in Brooklyn ruled that contracts forbidding merchants to steer customers toward other forms of payment were an unlawful restraint of trade.

The Second Circuit disagreed, ruling that Judge Garaufis had unduly focused on merchants’ interests “while discounting the interests of cardholders.”

“This approach does not advance overall consumer satisfaction,” Judge Richard C. Wesley wrote for a unanimous three-judge panel. “Though merchants may desire lower fees, those fees are necessary to maintaining cardholder satisfaction — and if a particular merchant finds that the cost of Amex fees outweighs the benefit it gains by accepting Amex cards, then the merchant can choose to not accept Amex cards.”

Eleven states asked the Supreme Court to hear the case, Ohio v. American Express, No. 16-1454, saying that the appeals court’s decision was at odds with established antitrust principles and affected “an astronomical number of retail transactions in the United States.”

The Justice Department agreed that the Second Circuit had gone astray.

“The court of appeals seriously departed from sound antitrust principles, and its decision leaves in place restraints that thwart price competition in an important sector of the economy and inflate the retail prices paid by all consumers,” the department’s brief said.

The department nonetheless opposed Supreme Court review, saying that the issues in the case deserved further consideration before the justices weighed in.

“Consistent with its usual practice of awaiting further percolation in the lower courts before taking up such novel legal issues,” the brief said, “the court should deny review here.”

In urging the Supreme Court not to hear the case, American Express said the appeals court’s ruling was correct and that the states seeking review had been “passive participants” in the litigation. “Amex knows of no instance in which the United States as a plaintiff abandoned its enforcement action and this court nonetheless granted review at the behest of another party,” the company’s brief said.

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