On Surveillance, DOJ Needs to Know When to Fold ‘Em

Our Department of Justice needs to heed Kenny Rogers’ advice in “The Gambler,” and “know when to fold ‘em.” In their pursuit of data on Microsoft’s servers in Ireland, the DOJ is again betting on a bad hand, and they’re not going to bluff their way to a win when the stakes are so high for companies and consumers around the world.

Last week, the DOJ went all-in by petitioning the Second Circuit court for rehearing after losing this summer in court.

In 2013, Microsoft rightly called foul on DOJ’s illegal search of Microsoft’s consumer data. Under federal law, if the DOJ gets a warrant – showing probable cause and having a judge agree – law enforcement can access data held domestically. But the DOJ went too far when it demanded access to data on a foreign Microsoft server in Ireland. The DOJ said because Microsoft is an American company, it must turn over foreign data.

Microsoft rightly challenged this abuse of authority, and this summer three federal judges of the Second Circuit Court unanimously sided with Microsoft. The court held that “Congress did not intend [these] warrant provisions to apply extraterritorially. The focus of those provisions is protection of a user’s privacy interests.”

We understand that some at the DOJ don’t want to fold their hand in the face of this unanimous decision. The DOJ is wounded by their battle to access the San Bernardino shooter’s phone and the DOJ is worried about future precedent.

But, instead of seeking rehearing by the entire panel of Second Circuit judges (called a “petition for rehearing en banc”), folding really is a better option for the DOJ. It can’t win regardless of the final card played.

Here’s why:

First, if the Second Circuit denies grant of the petition, the decision stands and other circuits are more likely to uphold the decision as a plurality of Second Circuit judges agree with the decision.

Second, if the Second Circuit rehears the case and rules against the DOJ, it loses even more credibility.

Finally, even if the Second Circuit rehears and reverses the decision, the DOJ can’t cash in their chips just yet. DOJ would still face an appeal to a Supreme Court that has consistently curtailed law enforcement’s overreach for private data stored in technological forms.

In its haste to file for this rehearing, the DOJ forgot that this Supreme Court unanimously ruled against law enforcement’s access contents of a cell phone in Riley v California. Likewise, it unanimously ruled against law enforcement’s illegal search in U.S. v Jones.

So if the rehearing is not granted, the DOJ loses. If a rehearing is granted and the court again finds for Microsoft, the DOJ loses again. And if a rehearing is granted, the DOJ is likely to “go bust” with an unfavorable ruling from the Supreme Court.

This makes it a lose-lose-lose proposition for the DOJ, with each advancement of the case further undermining the government’s case.

For the DOJ, this is a case where “know when to fold ‘em” is the best advice to follow. Clearly, the DOJ should withdraw its motion and walk away.

Carl Szabo is senior policy counsel for NetChoice, a trade association of eCommerce businesses and online consumers.

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