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A Microsoft office building in Beijing. Photo: Greg Baker / Getty

Microsoft appears before the Supreme Court today on a case addressing whether law enforcement can demand data that's stored in a foreign server but accessible from the U.S., or if it needs the foreign nation to demand it for them. The decision could put American companies in jeopardy, argues Microsoft president and chief legal officer Brad Smith.

The bottom line: "If customers around the world believe that the U.S. Government has the power to unilaterally reach into data centers operated by American companies, without reference or notification to their own government, they won’t trust this technology," Smith writes in a blog post published Tuesday morning.

The Justice Department believes that when data can be accessed from the U.S., search and seizure would take place in the U.S., not in the foreign country.

  • On the other hand: Microsoft will argue that data "has a real, physical location" wherever the server is located. The blog notes 51 computer scientists cosigned a legal brief to that effect. With physical evidence, the U.S. must abide by the treaties it had signed outlining a process to request retrieval of whatever they are seeking.
  • Other nations want the U.S. to respect their sovereignty: The blog notes that Ireland, France and various entities in the European Union have all asked the U.S. to request data through the standard process.
  • Reciprocity: If the U.S. ignores that process for data in other nations, other countries could demand data stored in the U.S.

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