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Jaap Arriens/NurPhoto via Getty Images

The Supreme Court on Tuesday will once again find itself wrestling with the balance between digital privacy and law enforcement — an uncomfortable yet increasingly common challenge for the justices. They’ll hear an hour of arguments in Microsoft v. United States, a potentially momentous case involving emails that are stored on overseas servers.

The issue: If an American email provider stores your emails on a server that's located in another country, does it have to hand those emails over in response to a warrant from U.S. law enforcement?

What they’re saying: The case hinges on the Stored Communications Act of 1986, in which Congress required law enforcement to get a warrant to search electronically stored communications.

  • The Justice Department argues that Congress clearly intended for companies like Microsoft to “disclose electronic communications within its control, regardless of whether the provider stores those communications in the United States or abroad.”
  • If search warrants don’t cover emails stored overseas, the Justice Department argues, that provides an easy path to get away with crimes including terrorism, child pornography and drug trafficking.

The other side: Microsoft accuses the government of making a policy argument, not a legal one — and those decisions are up to Congress, not the courts.

  • In the meantime, it argues, a ruling in the government’s favor here would open the door to retaliation.
  • “If the U.S. government obtains the power to search and seize foreign citizens’ private communications physically stored in other countries, it will invite other governments to do the same thing,” Microsoft president and chief legal officer Brad Smith wrote in a blog post. “If we ignore other countries’ laws, how can we demand that they respect our laws?”

Between the lines: This is the second big case this term that forces the court to fit modern technology into a legal structure written long ago. The court heard arguments in November in a case about law enforcement’s access to cell-phone location records.

  • It’s not a place the justices are very comfortable. During the cell-phone arguments, they wrestled with the clear limits of the legal precedent before them as well as the need to write their ruling in a way that doesn’t tie a future court’s hands as technology continues to evolve.
  • Expect to see similar hand-wringing this week. Cases that pit privacy against law enforcement can scramble the court’s left-right divide; the application to modern technology can scramble them even more.

Go deeper

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A key Food and Drug Administration advisory panel on Friday overwhelmingly voted against recommending Pfizer vaccine booster shots for younger Americans, but unanimously recommended approving the third shots for individuals 65 and older, as well as those at high-risk of severe COVID-19.

Why it matters: While the votes are non-binding, and the FDA must still make a final decision, Friday's move pours cold water on the Biden administration's plan to begin administering boosters to most individuals who received the Pfizer vaccine later this month.

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France recalls ambassadors from U.S. and Australia over submarine deal

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France has taken the extraordinary step of recalling its ambassadors to the U.S. and Australia after both countries blindsided their French allies with a new military pact and submarine contract, the French Foreign Ministry announced on Friday.

The backstory: While sealing an agreement with the U.S. and U.K. to acquire nuclear submarines, Australia ripped up an existing $90 billion submarine deal with France. That led senior French officials to accuse the U.S. of a "stab in the back."

Updated 9 hours ago - World

In reversal, Pentagon now says drone strike killed 10 Afghan civilians

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A U.S. drone strike launched on Aug. 29 killed 10 civilians in Afghanistan, including seven children, rather than the Islamic State extremists the Biden administration claimed it targeted, the Pentagon said Friday.

Why it matters: U.S. Central Command said at the time that officials "know" the drone strike "disrupted an imminent ISIS-K threat" to Kabul's airport, and that they were "confident we successfully hit the target."