Media coalition to Supreme Court: U.S. government’s use of search warrants to access data stored overseas threatens press freedom

On Thursday, the Reporters Committee for Freedom of the Press and Davis Wright Tremaine, joined by a coalition of 40 media organizations, submitted a friend-of-the-court brief to the United States Supreme Court in United States v. Microsoft. The court’s decision in the case will determine whether the U.S. government can use a search warrant to access emails that Microsoft stores outside of the country.

The coalition brief urges the court to consider how its decision could impact journalists’ ability to report the news and communicate with sources using cloud-based services run by third-party service providers.

Allowing the U.S. government to use a warrant to obtain data stored anywhere in the world by a U.S.-based company could embolden governments that are hostile toward the media to use their own nation’s laws to demand electronic information belonging to journalists.

“The U.S. has long been a model of press freedom, and we should remember that our actions can set an example worldwide. Journalists must have the ability to protect their information, no matter where it’s stored or who is storing it,” said Bruce Brown, executive director for the Reporters Committee for Freedom of the Press. “Journalists serve as a check on governments around the world and report on topics that may be of interest to those governments, which makes them a natural target of surveillance efforts. The United States shouldn’t take actions that could embolden other nations to reach across their own borders to obtain journalists’ information and chill important reporting by U.S. media at home and abroad.”

According to the brief, “If a U.S. court can compel a service provider to search and seize emails located anywhere in the world – without notice to the account owner or the sovereign nation where the emails and subscriber are located – other governments could demand the same response from those service providers’ subsidiaries in their own countries. In addition to seeking records from email and cloud providers, government authorities may raid local news bureaus seeking access to the emails of reporters based in the United States.”

The coalition brief also observes that journalists regularly entrust sensitive newsgathering materials and reporter-source communications – and the responsibility to protect them – to service providers like Microsoft. Cloud-based technologies are necessary tools for today’s newsgatherers, who use them to communicate with sources and editors, conduct research, store and send video and photos, draft stories, prepare social media posts, and interact with audiences, among other activities.

According to the brief, “A promise of confidentiality to a source or newsroom protocols to ensure the secrecy of drafts or newsgathering materials as a story is being crafted and substantiated are worth little if a reporter’s emails and electronic documents can be plucked from the cloud by simply compelling a third-party service provider to turn them over… It is therefore essential that technology companies safeguard journalist data to protect the confidentiality of sources and newsgathering materials.”

The full coalition brief is available here.