Does cloud computing have a nationality? That is the question posed by Microsoft’s lawyers and the counsel in a closely watched case whose oral arguments began in Manhattan on Wednesday morning. The case scrutinizes the ability of the US government to seize information outside its own borders.
Microsoft and the US government are facing off in the second circuit court of appeals over the tech giant’s continuing refusal to hand over e-mails related to a narcotics case from a Hotmail account hosted in Ireland in 2013.
Microsoft argues that its data should be protected by the laws of the land where its servers are located — a decision that will have major ramifications for cloud computing no matter which way it goes.
The case has made for strange bedfellows: Apple filed an amicus brief with Microsoft, as did the Electronic Frontier Foundation and Verizon, NPR and Fox News, the Irish government, the ACLU, eBay and the Guardian.
In court documents, Microsoft argued: “The power to embark on unilateral law enforcement incursions into a foreign sovereign country — directly or indirectly — has profound foreign policy consequences. Worse still, it threatens the privacy of US citizens.”
Thus far, the courts have been unsympathetic: Last year judge James Francis IV, the southern district of New York magistrate who originally issued the warrant, found that he had indeed made the right decision and told Microsoft to hand over the e-mails.
At issue is the Stored Communications Act of 1986, which Microsoft says could not possibly have anticipated cloud storage, in which data are meted out across servers all over the globe to reduce costs and increase speed. Even Microsoft agrees that Francis’ ruling is consonant with the act’s language, but it argues that the law is outdated.
Public officials are looking to reform the law, as well: Senators Orrin Hatch of Utah, Chris Coons of Delaware and Dean Heller of Nevada have co-sponsored the Law Enforcement Access to Data Stored Abroad (LEADS) Act, a bill that would address circumstances similar to the one being litigated.
The government argues that because Microsoft is a US corporation, all data controlled in its facilities anywhere on earth can be subpoenaed lawfully because the tech giant is headquartered in Redmond, Washington. Because of that, US government lawyers say, officials have the right to repatriate records and the search warrant acts as a subpoena.
In a recent study, underwritten by Microsoft, European think tank the Center for European Policy Studies wrote: “Microsoft has contested the decision on the grounds that the records are stored in a data center in foreign country, not owned by Microsoft but rather by the e-mail user and that the order entails a conflict of laws and the impermissible exercise of extraterritorial authority.”
Microsoft declined to comment on the record, citing active legislation, but last year Brad Smith, Microsoft’s top lawyer, told the Guardian tech companies would be forced to encrypt more of their data, defeating government efforts, if the company loses. “It will force companies to look for more ways to encrypt data and not retain the keys. Partner with non-US companies so that non-US companies have the servers. None of which will be helpful to the US,” he said.
“Part of what we are seeing here is the desire to go unilateral,” said Lee Tien, senior staff attorney for the Electronic Frontier Foundation. “We have formal mechanisms for this. They are cumbersome and we fully support expediting them and appropriating more money to make that thing work, but at the end of the day it is like saying: ‘Gee, we should not have to get a search warrant because it is a pain in the ass.’”
This warrant relates to a single narcotics trafficking case, but Tien said the current litigation recalls breaches of privacy on a much grander scale.
“When the Snowden stuff started coming out, a lot of folks were kind of upset to discover that the US government was taking advantage of the fact that a lot of communications run through the United States and were stored in data centers that were run by US companies. That made people who were not US citizens wonder: ‘Gee, is my data being protected the way it should be?’” Tien said.
Tien also judged the warrant to be overly broad, covering every e-mail ever sent from the account in a case that might not cover the entire life of a person’s private e-mail account. Tien said that the way judges understand these cases is changing, though: “We are seeing magistrates realize that that it is too broad to suck out five years of someone’s Gmail if it involves two months of someone’s life and, generously, a dozen people. None of that gives any reason to read anybody’s e-mails to their mom from five years ago.”
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