Microsoft fights U.S. gov’t over privacy

BY CATIE PAUL

On Wednesday, Microsoft challenged a federal ruling declaring that the company needed to turn over information relating to a United States drug investigation. The government wants to read emails that have been stored on a server in Ireland, but Microsoft is fighting them for access. The two sides presented arguments in front of an appeals court yesterday, and a judgement is expected in the coming months.

The case has been going on since December 2013 when the U.S. government originally issued a search warrant on Microsoft. The U.S. government wants to read the emails of an unnamed individual that have been stored on a server in Ireland. Microsoft believes that Irish and European data laws protect this information. This is the first case in which the government has asked for data stored abroad, which means that many companies and individuals are eagerly following the case.

Microsoft originally challenged the search warrant in court in April 2014. In this case, the judge upheld the warrant. In June of the same year, Microsoft decided to appeal to the U.S. District Court Southern District of New York where the judge once again ruled against Microsoft. Last December Microsoft appealed the case yet again, bringing it to the Second U.S. Circuit Court of Appeals in Manhattan, which is where the arguments were heard Wednesday.

“In the U.S. we believe there is an important debate to be held about the best way to reform the law and our international relationships, and there are critical policy considerations on both sides,” Brad Smith, Microsoft’s General Counsel, wrote in a blog post for the company, addressing the ongoing legal fight. “Law enforcement needs to be able to do its job, but it needs to do it in a way that respects fundamental rights, including the personal privacy of people around the world and the sovereignty of other nations.”

Smith argued that all digital communications should be held to the same standard of privacy as written communications and that this case is about the right to privacy.

Meanwhile the Obama administration has argued that the warrant is akin to a subpoena for records and that it doesn’t matter where the records are stored. The Justice Department believes that since Microsoft is a U.S. company it doesn’t matter where their servers are based.

Microsoft has started putting servers in other countries in order to speed up service for its international customers. When anyone signs up for a Microsoft email account they are asked about their country of residence. Lawyers representing the Department of Justice have argued that if Microsoft wins the appeal, anyone can put down a foreign country of residence in order to evade American law enforcement.

In the years since Edward Snowden revealed the National Security Agency’s ability to collect metadata on citizens, tech companies have become more open about fighting the government for control of data. Many tech companies want to build back any eroded trust that customers may have and avoid accusations that they colluded with the government in the first place.

As a result, Google, Yahoo and other companies now encrypt customer data to prevent government intrusions.

“The Government’s position in this case further erodes that trust, and will ultimately erode the leadership of U.S. technology companies in the global market,” Microsoft wrote in its appeals court filing, alluding to the importance of having customers trust tech companies with their data.

Instead of using a search warrant, Microsoft has suggested that the U.S. instead obtain the data through a request to the government of Ireland. The Irish government also filed a brief in the appeals court in which they stated that they would consider such a request “as expeditiously as possible.”

The case has been closely monitored by a variety of companies. All in all, 12 friend-of-the-court briefs have been filed in the hope of swaying the court to side with Microsoft. Some have been filed by tech companies including AT&T, Amazon and Verizon. Groups that advocate for privacy, such as the American Civil Liberties Union, have also filed briefs. News organizations, such as The Washington Post and Fox News, have also protested the ruling. They fear that the government will soon be able to access journalists’ documents around the world.

“As Microsoft lays out in the opening pages of its brief, one need only imagine that the records sought by the government are a reporter’s communications to appreciate the obvious dangers inherent in the district court’s decision,” the media organizations wrote in their brief. “Taken to its logical conclusion, the district court’s decision would allow the U.S. government to obtain a warrant ex parte and seize from a service provider a reporter’s newsgathering materials anywhere in the world — and would defeat attempts to dissuade other countries from seeking the emails of a U.S. reporter stored on U.S. soil by accessing the reporter’s account from overseas.”