Microsoft’s Fight with Department of Justice Could Change Privacy Laws

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Summary: The fight between Microsoft and the Department of Justice could change privacy laws in the United States. 

Microsoft Corp. and the Department of Justice are fighting over emails that are stored on a server owned by Microsoft in Dublin. The battle could lead to changes in the United States electronic privacy laws and the limits to which domestic statutes are applied overseas, according to The Christian Science Monitor.

  

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The United States government wants Microsoft to give up the contents of an Outlook email account that belongs to a suspect from a narcotics investigation. The DOJ claims that provisions from the Stored Communications Act allow it to obtain the content no matter where it is stored.

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Despite being ordered to comply with the demand by a magistrate judge and a federal district court, Microsoft has yet to hand over the emails.

Microsoft claims that the search warrant is illegal and that it involves a search and seizure of emails stored in another country exclusively, outside of the jurisdiction of the United States.

The company has argued that the emails are covered under Irish law and that the request for the emails should be made through Ireland’s government.

Microsoft filed an appeal last week in the U.S. Court of Appeals for the Second Circuit. Brad Smith, general counsel for Microsoft, said the following on Monday:

“Seldom has a case below the Supreme Court attracted the breadth and depth of legal involvement we’re seeing today. This case involves not a narrow legal question, but a broad policy issue that is fundamental to the future of global technology.”

Earlier this week, 10 amicus briefs were filed in support of Microsoft by 28 technology companies, 35 computer scientists and 23 trade associates. The companies involved include Verizon Communications Inc., AT&T Inc., Apple Inc. and Cisco Systems Inc.

Jennifer Archie is a partner with Latham & Watkins. Archie said, “There are some very real business issues here. A perception exists in foreign countries that your data is only a heartbeat away from being given to US law enforcement.”

The government has argued that the SCA search warrant applies to the service provider and not the location of the content and where it is stored.

Archie said that the issue at hand is centered around how the government receives access to data.

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“I think what is being tested here is the ability of the government to use this particular form of process to get at e-mail content stored abroad,” she said.

On Monday, Smith added, “The fundamental question is how to strike a right balance between the clear cut need for public safety and personal privacy and who should strike that balance. It is a problem and we would be among the first to acknowledge this.”

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