Could big Supreme Court case be tossed in near future?

One of the most-significant cases of the Supreme Court’s current term is on shaky ground after a new law may have settled the controversy before a judicial ruling could be issued.

Solicitor General Noel Francisco asked the Court last Friday to dismiss United States v. Microsoft, a case in front of the Justices in late February. The digital privacy fight involves Microsoft’s ability to exclude emails hosted on overseas servers from government subpoenas.

Back in 2013, federal investigators successfully got warrants from a court to obtain emails located on a server in Ireland as part of a drug investigation. Microsoft thought the warrants violated the terms of the Stored Communications Act of 1986 and only Congress could provide those warrant powers by amending the act.

During arguments on February 27, several Justices strongly suggested that Congress was the best arbitrator of the dispute. “If Congress takes a look at this, realizing that much time and innovation has occurred since 1986, it can write a statute that takes account of various interests,” said Justice Ruth Bader Ginsburg.

“It would be good if Congress enacted legislation that modernized this, but in the interim, something has to be done,” added Justice Samuel Alito.

Then on March 23, Congress added the Clarifying Lawful Overseas Use of Data Act (or CLOUD Act) on to a huge spending bill. The CLOUD Act requires a U.S.-based company to turn over the stored electronic data, regardless of where the data is stored, if served with a warrant. But the act also provides ways for companies to challenge such orders under certain circumstances.

On Friday, Francisco said the Supreme Court should move on from any decision. Specifically, he said that the Court should “vacate the judgment of the United States Court of Appeals for the Second Circuit and remand the case to that court with instructions to vacate the district court’s contempt finding and to direct the district court to dismiss the case as moot.”

The Supreme Court can “moot” a case under Section 21.2.b of its rules. Francisco noted that under prior rulings, a live controversy was needed for the case to remain at the Supreme Court. Lacking such a controversy or action from Microsoft to end the case, “the government has thus shouldered the responsibility of taking a formal step to end the particular dispute that prompted this case,” Francisco argued.

But Francisco noted that Microsoft indicated thought the case wasn’t a moot point. “Nevertheless, Microsoft has refused to acknowledge either that the CLOUD Act applies to the Section 2703 warrant at issue in this case or that Microsoft plans to disclose the required information under the original warrant.”

At the same time, the Justice Department issued a new warrant for the data in Ireland held by Microsoft. On Tuesday afternoon, Microsoft agreed that the case was moot under a separate filing.