Microsoft tests US warrant powers

The technology industry is rallying behind Microsoft, as the company fights a government warrant demanding it turn over a user’s email account stored at a data center in Dublin, Ireland. 

The federal government and the Redmond, Washington-based tech giant are at a standoff over the geographical limits of a U.S. warrant, which has broader implications for the emerging business of cloud storage. 

{mosads}Both sides will have a final chance to plead their case on Wednesday during oral arguments at the U.S. Court of Appeal for the Second Circuit in New York. 

Microsoft and a number of observers have argued the law guiding government access to electronic communication — the Electronic Communications Privacy Act (ECPA) — could not have anticipated the model for data storage today when it was written in 1986.

“Congress never intended to reach, nor even anticipated, private communications stored in a foreign country when it enacted [the law],” Microsoft argued in a brief earlier this year. “This Court should let Congress decide how best to bring ECPA into the 21st century.”

The government, however, argues that the case should not turn on where the information is stored. Instead, it should focus on the fact that Microsoft is a U.S.-based company under the government’s jurisdiction. Two previous judges have upheld the government’s warrant, and one found Microsoft in contempt. 

“Under long settled precedent, the power of compelled disclosure reaches records stored abroad so long as there is personal jurisdiction over the custodian and the custodian has control over the records,” the government has argued. 

The government also said that using the treaty process, which some encouraged, is an inadequate alternative to the warrant, since the treaty process can be time consuming and ineffective, because data often hops around from location to location. 

Microsoft has blitzed the case from all sides — securing dozens of backers, setting up a website dedicated to the case and pushing legislation that would settle the issue outside the court. 

It touts support from 28 tech and news companies, 23 trade associations and 35 “leading computer scientists.” Among them are tech companies such as Amazon, Apple, Cisco Systems, HP, eBay and Salesforce, as well as news organizations such as CNN, Fox News, NPR and The Washington Post. 

Aside from the legal arguments, the company has also pointed to economic and practical considerations. It has argued that compliance with the warrant would invite other countries to seize U.S. citizens’ correspondence in similar situations — when it is housed in the United States but maintained by a foreign-based company.

The government warned Microsoft is employing a common tactic to speculate about the economic cost of complying with a government order. It said those economic considerations are outweighed by the government interest. 

“With the benefits of corporate citizenship in the United States come corresponding responsibilities, including the responsibility to comply with a disclosure order issued by a U.S. court. Microsoft should not be heard to complain that doing so might harm its bottom line,” the government argued. 

The case on Wednesday will be heard by three Obama appointees: Judge Gerard Lynch, Judge Susan Carney and Connecticut District Judge Victor Bolden.

The case centers around a 2013 warrant the government obtained to access a Microsoft-hosted email account allegedly connected to U.S. drug trafficking. But Microsoft resisted after finding out that the email content was stored in its Dublin-based storage center set up in 2010. 

In the government’s brief, lawyers repeatedly point out that Microsoft operated the Dublin datacenter for three years before ever raising objections to avoid compliance. 

The email owner’s identity and citizenship is not known and is not at issue in the case. Microsoft generally tries to store data as close to a customer as possible, but it determines customer location based on the person’s self-selected country of residence when the account is created, which could be false.  

Observers, and even supporters of Microsoft, have acknowledged the competing interests at play and have speculated Congress might have to step in to clarify the law, regardless of the ruling. 

And not all tech companies are agreed on how that legislation should look. 

Microsoft has backed the LEADS Act in Congress, which would allow the government to use a warrant to get access to Americans’ data stored overseas, but not from foreigners. Under the bill, a U.S. company could fight the government order if it would violate the foreign country’s laws. 

While companies such as Apple, Microsoft, IBM, The App Association, and about 25 other groups have applauded the legislation pushed by Sen. Orrin Hatch (R-Utah), others have raised concern that it could actually lead to more data localization. A trade group representing companies such as Google, Facebook and Yahoo has
taken issue with the bill’s focus on where the data is stored, rather than a user’s citizenship.