The Feb. 27 Supreme Court argument in United States v. Microsoft Corp. raises profound questions about issues of executive power, corporate governance, technology, judicial power and international affairs. At stake for the government is the scope of its investigative authority to obtain information located in a foreign country, irrespective of that country’s laws. At stake for Microsoft is its ability to organize its international corporate affairs and the predictability of the laws that will govern those affairs.
While certainly profound, these issues are hardly new. Long before the advent of the digital age and the emergence of modern supernational bodies like the European Union, with its robust Data Protection Directive, courts debated whether to order the production of documents located in another country and worked to resolve clashes between the law of the country seeking information and the law of the country where it is sought. For instance, in 1947 the Southern District of New York subpoenaed the production of documents located in Canada from a Canadian paper company because the company was doing business in New York. Afterward, Quebec passed legislation to prohibit the removal of corporate records in response to a subpoena from a foreign jurisdiction. Close attention to such historical guideposts can foreshadow Microsoft’s most significant implications, not just for government investigators and lawyers for multinational corporations, but also for lawyers involved in garden-variety commercial litigation that simply happen to involve documents located abroad.
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