The latest court ruling in an ongoing battle between Microsoft and demands from the United States government for data about one of the company’s users, seems to have a lot of folks running for cover.
In 2013, U.S. Magistrate Judge James Francis issued a search warrant requiring Microsoft to turn over all date pertaining to the subscriber, hosted on a server in Ireland, to the U.S. authorities.
Microsoft refused, contending that warrants issued by U.S. courts do not apply outside the country.
In April, Judge Francis denied Microsoft’s motion to quash the warrant in part.
Microsoft has refiled the case in the U.S. District Court for the Southern District of New York. Verizon on Tuesday filed a brief in support of Microsoft.
What the Ruling Says
Internet service providers have to disclose customer information or records to the government under the Stored Communications Act, Judge Francis ruled.
The SCA “was enacted at least in part in response to a recognition that the Fourth Amendment protections that apply in the physical world, and especially to one’s home, might not apply to information communicated through the Internet,” he noted.
Warrants are issued under section 2703(a) of Title 18 of the United States Code, Judge Francis said. They entitle the government to pretty much everything, but the government has to demonstrate probable cause and use procedures described in the U.S. Federal Rules of Criminal Procedure.
The term “warrant” used in 2703(a) really results in a hybrid that is “obtained like a search warrant”… but “executed like a subpoena in that it is served on the ISP in possession of the information and does not involve government agents entering the premises of the ISP to search its servers and seize the email account in question,” the judge explained.
As such, it “supports the government’s view that the SCA does not implicate principles of extraterritoriality,” Judge Francis stated. “It has long been the law that a subpoena requires the recipient to produce information in its possession, custody or control regardless of the location of that information.”
However, “a search of electronic data which can be done remotely should follow the same rules as a physical search,” Rob Enderle, principal analyst at the Enderle Group, pointed out. The problem is, the laws have fallen well behind advances in technology.
What the Ruling Could Mean
“This interpretation places seizure and search as peer concepts when it comes to data and lowers the bar substantially for access as a result,” Enderle told TechNewsWorld, “but that was the intent of a variety of laws passed after 9/11.”
It could give the NSA and other U.S. government agencies a free hand to conduct surveillance on all communications from anywhere, including U.S. citizens within the country.
However, Congress might rein in the NSA if the agency gets overenthusiastic, and court challenges to such behavior also might arise, Enderle suggested.
Verizon Supports Microsoft
Microsoft General Counsel Brad Smith last week criticized the warrant heavily at an event held by the Personal Democracy Forum in New York.
It “is the broadest possible warrant that one literally can imagine in the 21st Century,” Smith said.
“We need to live in a world where governments respect each other’s borders, live up to international treaties and, most importantly, remember the principles that got us started in the first place,” Smith continued. “It’s … about the world and the moral authority of the United States.”
Verizon’s brief contends Judge Francis’ decision is wrong, and warns it will have “an enormous detrimental impact on the international business of American companies, on international relations and on privacy.”
It also warns of possible retaliation by foreign governments.
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