Microsoft Challenges US Warrant To Disclose Email Stored Abroad
June 11, 2014

Microsoft Challenges US Warrant To Disclose Email Stored Abroad

Peter Suciu for - Your Universe Online

On Tuesday the New York Times reported Microsoft had challenged the authority of federal prosecutors in the United States to force it to hand over customer emails that were stored in an Ireland data center. This is reportedly the first time a corporation has challenged a domestic search warrant seeking information that was stored overseas. The case has attracted attention from privacy groups and other American-based technology companies.

In court filings that were filed last week and made public on Monday, the tech giant argued such demands by the United States government "violate international law and treaties, and reduce the privacy protection of everyone on the planet."

The case involved a search warrant, issued last December by a magistrate judge in New York, that demanded Microsoft hand over emails stored in its Dublin, Ireland database. The emails reportedly were related to a drug trafficking investigation, the Washington Post reported.

Microsoft subsequently outlined its objections to the magistrate's order on the grounds the customer information is located outside the United States.

"Congress has not authorized the issuance of warrants that reach outside US territory," Microsoft lawyers wrote in a brief filed Friday, as reported by the Washington Post. "The government cannot seek and a court cannot issue a warrant allowing federal agents to break down the doors of Microsoft’s Dublin facility."

Privacy advocates have supported Microsoft's challenge.

"United States search warrants do not have extraterritorial reach," Lee Tien, a senior staff attorney with the San Francisco-based nonprofit Electronic Frontier Foundation, which defends civil liberties in the digital world, told the International Business Times on Tuesday. "The government is trying to do an end run."

Other corporations have also supported Microsoft's position. On Tuesday, Verizon Communications also filed a brief supporting the petition, while other companies are expected to follow.

Microsoft had lost the first round in its protest two months ago, when James C. Francis, magistrate judge in federal court in New York wrote, "Microsoft's argument is simple, perhaps deceptively so." Following that ruling it was expected to push for a reversal in the Federal District Court in New York. While legal experts have noted search warrants seeking information abroad are rare, Microsoft's stance is more than just about this case's legality.

"This is a policy decision as well as a legal one," Peter Swire, a professor at the Georgia Institute of Technology, who served on a White House advisory group on intelligence and communications technologies last year, told the New York Times on Tuesday.

Microsoft has contended the rules that would apply to a search warrant in the physical world should apply online as well, and that the standard proof for a search warrant remains "probable cause" and "particularity." This is in contrast to a subpoena, which is a less powerful court-ordered investigation tool that requires only information that is "relevant to an ongoing investigation." In the case of a subpoena, a person being investigated has the right to be informed.

At the heart of this disagreement is Microsoft's claim that the court never issued a true "warrant" under the US Electronic Communications Privacy Act (ECPA) but actually something that was a hybrid between a "warrant" and a "subpoena."

Francis argued, "It has long been the law that a subpoena requires the recipient to produce information in its possession… regardless of the location of that information."

A key unresolved point was that the data was not within the United States, but the judge opined that the search would take place only when the emails were open and read and that would in fact be within the United States.

"The scope of the privacy laws around the world is now a very important question, and this is the beginning of what may be a lot of litigation on the question," Orin S. Kerr, a George Washington University law professor and surveillance-law scholar, told the Washington Post. "So it's a big case to watch."

It is not the only case where Microsoft has stood up recently in such legal entanglements.

Last month, Microsoft challenged the FBI on a policy of notifying enterprise customers of government data requests.