Microsoft Challenges Court Order To Turn Over E-Mail in Dublin Datacenter

Microsoft last week filed a legal brief challenging a court order that is forcing the company to turn over a customer's e-mails stored in a foreign datacenter.

The brief, filed April 8 with the United States Court of Appeals for the Second Circuit, seeks to argue last summer's court order that Microsoft must turn over the messages from the customer, who is suspected in an alleged drug-related matter. The identity of the suspect is not known and Microsoft said at the time of the ruling, which was upheld by Judge Loretta Preska, that it would appeal the order.

A number of major technology companies last year had filed briefs in support of Microsoft's appeal including Apple, AT&T, Cisco and Verizon, along with the Electronic Frontier Foundation, noting that the outcome promises to set a precedent for all U.S.-based cloud providers storing data abroad.

"Settled doctrine makes this Court's job simple: Because laws apply only domestically unless Congress clearly provides otherwise, the statute is properly read to apply only to electronic communications stored here, just as other countries' laws regulate electronic communications stored there," according to the brief, which Microsoft published. "Even if the Government could use a subpoena to compel a caretaker to hand over a customer's private, sealed correspondence stored within the United States, however, it cannot do so outside the United States without clear congressional authorization."

Brad Smith, Microsoft's general counsel and executive vice president for legal and corporate affairs, indicated in a blog post that he's confident the company will prevail. "As we stated in our brief, we believe the law is on the side of privacy in this case, he said. "This case is about how we best protect privacy, ensure that governments keep people safe and respect national sovereignty while preserving the global nature of the Internet."

Smith also argued that the feds are long overdue in evaluating electronic privacy laws. "While there are many areas where we disagree with the government, we both agree that outdated electronic privacy laws need to be modernized," he said. "The statute in this case, the Electronics Communications Privacy Act, is almost 30 years old, he noted. "That's an eternity in the era of information technology."

Those differences of course pertain around combatting criminal activities versus protecting privacy. Smith acknowledged that conflict but renewed his plea for the government to find a resolution. "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," he said. "We hope the U.S. government will work with Congress and with other governments to reform the laws, rather than simply seek to reinterpret them, which risks happening in this case."

Posted by Jeffrey Schwartz on 04/13/2015 at 11:11 AM