Talk:Microsoft Corp. v. United States

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Requested move 8 February 2017[edit]

The following is a closed discussion of a requested move. Please do not modify it. Subsequent comments should be made in a new section on the talk page. Editors desiring to contest the closing decision should consider a move review. No further edits should be made to this section.

The result of the move request was: moved. Jenks24 (talk) 14:32, 15 February 2017 (UTC)[reply]


Microsoft Corporation v. United States of America → Microsoft Corp. v. United States – Should be a little more concise and follow MOS:LAW. However, should not be confused with United States v. Microsoft Corp. George Ho (talk) 09:45, 8 February 2017 (UTC) Fix for the bot George Ho (talk) 11:56, 8 February 2017 (UTC)[reply]

This is a contested technical request (permalink). Anthony Appleyard (talk) 09:55, 8 February 2017 (UTC)[reply]
  • @George Ho: discuss Anthony Appleyard (talk) 09:55, 8 February 2017 (UTC)[reply]
  • Support per MOS:LAW. According to the citation conventions used in the Second Circuit, "Microsoft Corp. v. United States" is the proper short-form title. Per WP:COMMONNAME, it's also the title that is used by reliable sources (see, e.g., this summary of the case from the Harvard Law Review). I should note that there is another case called Microsoft Corp. v. United States, 530 U.S. 1301 (2000), but the United States Supreme Court declined to rule on the merits, so it may not be an appropriate topic for a standalone article. In the 2000 case, Chief Justice Rehnquist wrote a statement in which he argued that it is important for the Court to have nine members; that statement was quoted fairly frequently during the Merrick Garland nomination (you can read the statement at this link). In any event, if we ever decide to write an article about Microsoft Corp. v. United States, 530 U.S. 1301 (2000), we can further disambiguate the cases by adding the year after the names of the parties, but we don't have to worry about that now. -- Notecardforfree (talk) 05:51, 10 February 2017 (UTC)[reply]
The above discussion is preserved as an archive of a requested move. Please do not modify it. Subsequent comments should be made in a new section on this talk page or in a move review. No further edits should be made to this section.

CLOUD Act stuff[edit]

I do want to point out that in looking through what's led to the CLOUD Act, that nearly all sources point to this specific case (or at least, from the original 2013 court challenges) as the reason Congress has been trying to push legislation. I agree that right now, how passage of CLOUD would affect the decision of this case is not clear, but I think it is worthwhile to note that concurrent to the events of this case (including prior to SCOTUS) Congress has been trying to also get legislation in place. Maybe it belongs more in the bg, not sure though. --Masem (t) 17:32, 23 March 2018 (UTC)[reply]

Yeah. My gut tells me there should be a way to include the CLOUD Act in the article, but I don't know what that would be. For now I'll add a see also. It may be the best we can do until there are further developments. --Dr. Fleischman (talk) 18:02, 23 March 2018 (UTC)[reply]
I don't see why mentioning that the CLOUD Act (now law after Trump's signature) may moot the case, when we have sources that say so, is "Crystal Ball" while saying "a ruling expected by the end of the Court's term in June 2018." is not, especially when the later statement is in now doubt.--agr (talk) 19:27, 23 March 2018 (UTC)[reply]
The problem isn't that the ruling is expected, the problem is that a couple of sources say if the law is passed then it might moot the case. This is vague speculation about the legal ramifications of something that hasn't happened yet, classic crystal ball stuff. Moreover the speculators are reporters, not legal experts. --Dr. Fleischman (talk) 20:03, 23 March 2018 (UTC)[reply]

The Solicitor General informed the court of the passage of the CLOUD Act on Friday, stating: "The United States is currently determining whether, and if so, to what extent the passage of the CLOUD Act affects the Court’s disposition of this case. It intends to file a supplemental filing addressing the question as promptly as possible." The docket for the case is here.

It isn't inappropriate crystal ball speculation. That policy says: "It is appropriate to report discussion and arguments about the prospects for success of future proposals and projects or whether some development will occur, if discussion is properly referenced. ... It is not appropriate for editors to insert their own opinions or analyses. Predictions, speculation, forecasts and theories stated by reliable, expert sources or recognized entities in a field may be included." If the new law allows the government to get the warrant, then the case is moot and the court won't issue an opinion because the Case or Controversy Clause of the US constitution prevents the federal courts from issuing advisory opinions. I think it's likely that the case won't be decided, since it just deals with the interpretation of a particular clause of a law and doesn't have significant implications for a particular subject of law (the presumption against extraterritoriality is a well-established subject). Because of the separation of powers between the legislative, executive, and judicial branches of gov't, the federal courts are likely to be apathetic to the government's appeal since its not their job to make law but to interpret law (especially in this case, since Congress cited it as a major reason for the CLOUD Act). But that's just my opinion/analysis. As for reliable material/sources that can be used in the article:

  • As the article already points out, one of the judges on the Second Circuit remarked that Congress should do its jobs "While he agreed with the majority that the presumption against extraterritoriality, as clarified in Morrison, was decisive in this case, he did not believe it to be an optimal policy outcome and called on Congress to clarify and modernize the SCA."
  • During oral arguments before SCOTUS, two of the justices noted that Congress was working on a bill to address the problem (and the bill included methods that cooperated with foreign governments). See pages 6 and 11-17 of the oral argument transcript. Here's some reliable secondary sources from legal experts:
    • SCOTUSblog's oral argument recap/analysis: "As I explained in my preview, the Supreme Court is not the only branch of the federal government considering the complex questions at issue in Microsoft’s case. Recently a bipartisan group of senators introduced legislation – known as the CLOUD Act – that would allow warrants for data stored overseas, but would also give both email providers and the countries where the data is stored a chance to object to those disclosures. Ginsburg and Justice Sonia Sotomayor seemed to believe that Congress, rather than the Supreme Court, was best suited to deal with the questions before the court. Sotomayor told Dreeben that, when it enacted the SCA, Congress was only trying to protect data stored in the United States. What the government is asking the Supreme Court to do now, she continued, is to imagine how Congress would deal with disclosures of overseas data if it considered the question. Given the prospect that the court’s ruling could create conflicts with other countries’ laws and, as a result, foreign-relations problems, she asked, why shouldn’t the justices leave things as they are and let Congress change the law if it wants to do so?"
    • an excellent overview of the case and oral argument, written by a law school professor/cybersecurity scholar, but is simply notes at the beginning that the CLOUD Act "could moot the case".
    • A technology law lawyer remarked in this article: "Oddly, the entire case may be rendered moot if Congress passes The Cloud Act — a piece of legislation introduced by Senator Orrin Hatch of Utah that, if passed, would state that SCA warrants would not apply to data housed abroad, but also allow technology companies to challenge such warrants should they perceive that the laws of the country where data is hosted are violated by them."
    • In a Lawfare article from February discussing the introduction of the bill: "On Tuesday, Sens. Orrin Hatch, Christopher Coons, Lindsey Graham and Sheldon Whitehouse announced a bill that could address both problems at once and even moot the Microsoft-Ireland case. [quotes provision that wasn't later amended] This provision reflects the Justice Department’s position in the Microsoft Ireland case and would, if adopted, likely make that case moot."
    • The Electronic Frontier Foundation's webpage about the CLOUD Act points out: "This bill would also moot legal proceedings now before the U.S. Supreme Court."

As for the relevance of the CLOUD Act to the article, I think mention of the CLOUD Act is a must. While there is no explicit reference to the case in the bill that passed, the expanded title is the Clarifying Lawful Overseas Use of Data (CLOUD) Act and the Congressional statement of findings begins:

"Congress finds the following:
(1) Timely access to electronic data held by communications-service providers is an essential component of government efforts to protect public safety and combat serious crime, including terrorism.
(2) Such efforts by the United States Government are being impeded by the inability to access data stored outside the United States that is in the custody, control, or possession of communications-service providers that are subject to jurisdiction of the United States."

When the bill was orally introducted by Sen. Hatch, his remarks mentioned this case:

"The question of whether warrants issued to U.S.-based providers may require providers to disclose data stored in other countries is currently before the U.S. Supreme Court in the United States v. Microsoft case. Oral argument in the case will be heard later this month. No matter how the Court rules, however, problems will remain. Either law enforcement will lack the ability to obtain in a timely manner email and documents in the cloud that are stored overseas, or providers will find themselves caught between conflicting domestic and foreign laws. The CLOUD Act creates a clear, workable framework to resolve these problems."

All that said, if the court doesn't issue a decision, should this article be moved back to Microsoft v. United States and focus on the Second Circuit decision (with a section about the SCOTUS appeal, of course)? AHeneen (talk) 09:24, 25 March 2018 (UTC)[reply]

Thanks for the info. If you can put together some proposed content that ties the CLOUD Act to this case (with reliable sources) that conforms with CBALL then by all means let's see it. No using court documents like briefs. Ideally the connection should be made using secondary sources that cite established experts. I believe the Scotusblog and Lawfare sources are effectively self-published, so their reliability would depend on whether the authors are subject matter experts who've been published in other, independent reliable sources. EFF is an advocacy group so its publications should be avoided. --Dr. Fleischman (talk) 19:47, 26 March 2018 (UTC)[reply]
Here's perhaps a starting point CNN on 2/27. MSFT argued in the oral session that the responsibility of this should fall to Congress, and that same day, the White House pointed that the CLOUD Act would solve these issues, while the DOJ argued that the Court needed to take action since they couldn't wait on Congress (which, we know , didn't happen that way). And here's Bloomberg on the same matter. And then we have Hatch's statement on this (who has been pushing something akin to CLOUD for a few years): [1] "No matter how the court rules, problems will remain," Hatch said. "Either law enforcement will lack the ability to obtain in a timely manner email and documents in the cloud that are stored overseas, or providers will find themselves caught between conflicting domestic and foreign laws." As well as the fact that Microsoft and other major data providers supported CLOUD. So I'm pretty confident we can mention concurrently that CLOUD act was introduced and passed, but cannot say anything to the end yet how this affects the case or vice versa. --Masem (t) 23:02, 26 March 2018 (UTC)[reply]
More useful sources... however per CBALL I think the connection should be made by an independent expert, rather than by an involved party like Microsoft or Senator Hatch. Both of those parties have a clear interest in promoting the bill by tying it to the pending lawsuit. --Dr. Fleischman (talk) 16:36, 27 March 2018 (UTC)[reply]
Now we have something: [2] DOJ is asking the Court to consider the case moot given the passage of the CLOUD act, and as of Friday (3/30) has gotten a warrant under the CLOUD act to request the emails in question from the original case. We still can't say how CLOUD Act affects this, but it is no longer non-connected. --Masem (t) 18:31, 2 April 2018 (UTC)[reply]
More specifically [3] DOJ wants the SC to summarily send the case back to Appeals Court so there they can render that any judgement is moot given CLOUD. --Masem (t) 18:34, 2 April 2018 (UTC)[reply]
That's the link we needed. Thanks for your persistence. --Dr. Fleischman (talk) 18:47, 2 April 2018 (UTC)[reply]
Added with these additional refs. --Masem (t) 19:04, 2 April 2018 (UTC)[reply]

Name change back to 2nd Circuit appeal?[edit]

Assuming that the Supreme Court declares the pending appeal moot and remands back to the 2nd Circuit, which seems likely, what would that mean for our article title and how we frame the subject of the article in the lead section and infobox? Do we call this the mooted 2018 United States v. Microsoft Corp. Supreme Court case, or do we call it the 2016 2nd Circuit case Microsoft Corp. v. United States, which is how it was described before I moved it on March 1? --Dr. Fleischman (talk) 18:54, 2 April 2018 (UTC)[reply]

It's probably too soon to answer; let's see both what the Court does, and how media responds. If the Court doesn't give an opinion and the case is basically closed quietly since it no longer matters, it probably makes sense to move it back. --Masem (t) 18:59, 2 April 2018 (UTC)[reply]
The current article should be moved back to Microsoft Corp. v. United States. The article at United States v. Microsoft Corp. (2001) should be moved back to United States v. Microsoft Corp., with the hatnote (use Template:For) changed to "This article is about the 2001 antitrust lawsuit. For the data privacy case appealed to the U.S. Supreme Court as United States v. Microsoft Corp., see Microsoft Corp. v. United States. Both parties filed motions to dismiss the appeal as moot this past week; SCOTUS orders will be issued Monday (April 9) and should include their disposition of this case. AHeneen (talk) 12:51, 7 April 2018 (UTC)[reply]
If, and it is very unlikely, but remains a possibility, that the SC keeps and hears the case on its merits and makes a ruling, then US v MSFT is the right title. But the more likely situation is that they will vacate, and the lower court will render the case moot, at which point I fully agree the renaming above should be done. Let's just wait to see what the SCOTUS does. --Masem (t) 14:32, 7 April 2018 (UTC)[reply]
So the SC has just followed through as expected, vacating the case, and ordering lower courts to do the same. As such, I think we can rename this back to MS vs US, since while the SC got involved, they never issued an effective decision on the original matter, and the case only is historically relevant for kicking Congress in gear to pass CLOUD. --Masem (t) 14:15, 17 April 2018 (UTC)[reply]
I see I've been beat to the news, but here's a link to the opinion. I'm away from a computer (editing from phone), or else I'd make the changes myself right now. AHeneen (talk) 14:50, 17 April 2018 (UTC)[reply]
I have:
However, I realized that there is another case with the same name Microsoft v. United States (2016 lawsuit). I moved this article (the 2017-18 SCOTUS appeal) despite discovering that other article and am not sure what the best thing to do is: should a disambiguator be added (and, if so, what name is most appropriate)? Or should the two cases be merged into a single article (although I don't know what the best name would be), since they deal with the same topic (Microsoft challenging warrants to access customer data, the main issue being the 1986 Electronic Communications Privacy Act)? This last option may be a good option since SCOTUS vacated the 2nd Circuit decision that is now the case name, so most of the notability is about the controversy of the government warrants and 1986 ECPA & Stored Communications Act. AHeneen (talk) 17:23, 17 April 2018 (UTC)[reply]
  • AHeneen, I think you might have acted prematurely. Though I was the one to raise the question of whether we should move it, I didn't support a position one way or the other at the time. I'm not wed to this but now I lean toward leaving it how it was. I believe most reliable sources have called the case United States v. Microsoft Corp. and have focused on the Supreme Court appeal. And while the Court didn't rule on the merits, there's still an opinion with that name. Moving the article back doesn't seem consistent with our naming policy. --Dr. Fleischman (talk) 19:42, 17 April 2018 (UTC)[reply]
    • The only reason it was named "US v MS" was because the appeal to the SC was made by the US, so they became the petitioners. The case has most of its hearings and legwork in the Circuit Court, under "MS vs US" challenging the warrant, so it makes the most sense to keep at the MS vs US name since the SC effectively did little --Masem (t) 19:54, 17 April 2018 (UTC)[reply]
Actually most of the hearings and legwork was done by the Southern District of New York, so if we're going to go with that standard then we should call the article In re Warrant to Search a Certain E‐Mail Account Controlled and Maintained by Microsoft Corp., which was the name of the case when it was before the SDNY. --Dr. Fleischman (talk) 20:09, 17 April 2018 (UTC)[reply]
Hrm, there's precision, which this would be, but then there's the ease of finding this, which is complicated by the two other cases that have "US" and "MS in the title. I don't think going with the initial name is the right answer. --Masem (t) 20:17, 17 April 2018 (UTC)[reply]
Right, that's why I think we should move the article back to United States v. Microsoft Corp. (2018). It would be easier to find since more reliable sources have referred to it that way. (Plus it would be consistent with policy.) --Dr. Fleischman (talk) 20:41, 17 April 2018 (UTC)[reply]
DrFleischman You cited to Wikipedia:Title. However, there's actually a specific naming convention for legal cases at MOS:LAW#Article titles (note that this is a page that is part of the Manual of Style, not a Wikiproject convention that would carry less weight): "Articles on cases should be titled according to the legal citation convention for the jurisdiction that handled the case." While I don't know if it is specified anywhere, my understanding of legal case article titles is that the name used is the name of the decision issued by the highest court, not the highest court that a lawsuit was appealed to. If an article is written about a case that the US Supreme Court is considering, it remains at the name of the case in the opinion that is being appealed (in the vast majority of cases, from a federal circuit court of appeal or a state supreme court) until SCOTUS releases an opinion in the case, even though the SCOTUS case name will be more strongly associated with the lawsuit and there are likely to be many more reliable sources using the SCOTUS case name.
Most Wikipedia articles for legal cases are primarily notable for the legal arguments the court decided, so for that reason I think that Second Circuit decision is what the article is mainly notable for. While the SCOTUS appeal received a lot of attention in the media and more sources will use the SCOTUS case name, the Second Circuit appeal also got a lot of attention from media & third parties. AHeneen (talk) 07:28, 19 April 2018 (UTC)[reply]
I knew I'd seen MOS:LAW#Article titles before but couldn't find it again, so thanks for pointing it out. Yes, I understand that's the convention, even if it's not articulated in WP space, and if we're going to follow that convention then I think we should move back to United States v. Microsoft Corp. (2018). Why? Because the Supreme Court did issue an opinion, as I pointed out in my previous comment. The fact that the opinion was not a decision on the merits as important as you might think. Compare this case to DeFunis v. Odegaard. In the lower courts that case was about affirmative action. But circumstances changed after the Supreme Court accepted certiorari. Instead of deciding on the merits, the Supreme Court ruled the case moot and remanded, just as it did here. The case is now widely known by the name of the Supreme Court's decision as the leading case on mootness. --Dr. Fleischman (talk) 15:50, 19 April 2018 (UTC)[reply]
I think that DeFunis can be distinguished because it is long and actually discusses legal merits of the mootness issue (Tory v. Cochran is similar), whereas the US v. MS "opinion" was just 2.5 pages that very briefly summarized the issue, why it was now moot, and directing the lower court how to dispose of the case. Compare the 2.5-page "slip opinion" with the "order" SCOTUS issued when the Trump travel ban case became moot and the only difference is that in the MS case there is a longer explanation of the issue before the court and the reason why it is moot. Speaking of the travel ban case, Int'l Refugee Assistance Project v. Trump is currently at the title of the Fourth Circuit decision, despite the appeal being granted by SCOTUS (who also issued an opinion that stayed part of the preliminary injunction issued by the Fourth Circuit). AHeneen (talk) 21:46, 23 April 2018 (UTC)[reply]
And in this line, I would argue that it was the 2nd Circuit's ruling that led Congress to act to change/update the SCA to make the case moot. Even though that ruling means nothing now, it had a place in the situation, whereas the SC became window dressing and the necessary red tape to close the case down. --Masem (t) 22:04, 23 April 2018 (UTC)[reply]
Thanks for alerting me to Int'l Refugee Assistance Project v. Trump. That's an apt comparator, but it's not true that the length of the explanation was the only difference between the two. In the refugee case the Supreme Court only issued a minute order, whereas in our case it entered a slip opinion, just like DeFunis. I don't think we should be making these sorts of decisions based on how long the opinion is. After all plenty of highly notable Supreme Court decisions were made with very short opinions, especially in the old days. For instance United States v. Barker was only six words long! --Dr. Fleischman (talk) 22:46, 23 April 2018 (UTC)[reply]
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