Microsoft, US face off again over emails stored in Ireland

A dispute between Microsoft and the U.S. government over turning over emails stored in a data center in Ireland comes up for oral arguments in an appeals court in New York on Wednesday.

Microsoft holds that an outcome against it could affect the trust of its cloud customers abroad as well as affect relationships between the U.S. and other governments which have their own data protection and privacy laws.

Customers outside the U.S. would be concerned about extra-territorial access to their user information, the company has said. A decision against Microsoft could also establish a norm that could allow foreign governments to reach into computers in the U.S. of companies over which they assert jurisdiction, to seize the private correspondence of U.S. citizens.

The U.S. government has a warrant for access to emails held by Microsoft of a person involved in an investigation, but the company holds that nowhere did the U.S. Congress say that the Electronics Communications Privacy Act “should reach private emails stored on providers’ computers in foreign countries.”

It prefers that the government use “mutual legal assistance” treaties it has in place with other countries including Ireland. In an amicus curiae (friend of the court) brief filed in December in the U.S. Court of Appeals for the Second Circuit, Ireland said it “would be pleased to consider, as expeditiously as possible, a request under the treaty, should one be made.”

A number of technology companies, civil rights groups and computer scientists have filed briefs supporting Microsoft.

In a recent filing in the Second Circuit court, Microsoft said “Congress can and should grapple with the question whether, and when, law enforcement should be able to compel providers like Microsoft to help it seize customer emails stored in foreign countries.”

“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,” Microsoft’s general counsel Brad Smith wrote in a post in April.

Lower courts have disagreed with Microsoft’s point of view. U.S. Magistrate Judge James C. Francis IV of the of the U.S. District Court for the Southern District of New York had in April last year refused to quash a warrant that authorized the search and seizure of information linked with a specified Web-based email account stored at Microsoft’s premises.

Microsoft complied with the search warrant by providing non-content information held on its U.S. servers but filed to quash the warrant after it concluded that the account was hosted in Dublin and the content was also stored there.

If the territorial restrictions on conventional warrants applied to warrants issued under section 2703 (a) of the Stored Communications Act, a part of the ECPA, the burden on the Government would be substantial, and law enforcement efforts would be seriously impeded, the magistrate judge wrote in his order. The Act covers required disclosure of wire or electronic communications in electronic storage.

While the company held that courts in the U.S. are not authorized to issue warrants for extraterritorial search and seizure, Judge Francis held that a warrant under the Stored Communications Act, was “a hybrid: part search warrant and part subpoena.” It is executed like a subpoena in that it is served on the Internet service provider who is required to provide the information from its servers wherever located, and does not involve government officials entering the premises, he noted.

Judge Loretta Preska of the District Court for the Southern District of New York rejected Microsoft’s appeal of the ruling, and the company thereafter appealed to the Second Circuit.