Microsoft wins case against US govt demand for data
15 Jul 2016
In a surprise federal court ruling, Microsoft Corp won the reversal on Thursday of a court order requiring it to turn over to the US government the contents of a customer's email account stored on an Irish server, marking a victory for privacy advocates.
The 2nd US Circuit Court of Appeals in New York reversed a 2014 ruling ordering the company to produce the documents, and overturned an order that held the technology giant in contempt for not complying with a search warrant.
The company has been fighting since 2013 to resist turning over the emails, which are stored in an Irish data centre (See: Facebook, Microsoft flooded with user data requests from US govt). The court has now ruled that Microsoft is not required to comply with a warrant for the users' emails if the data is not stored within the US.
Microsoft's case began in 2013, when a New York district court issued a warrant for emails and additional information about one of the company's customers. Although Microsoft partially complied by providing some metadata and ''non-content information'' about the customer, it argued that the emails themselves were stored in Ireland, and were therefore not subject to a warrant issued by a US court.
In 2014, a federal magistrate judge again ordered Microsoft to turn over the emails - but Microsoft appealed to the 2nd Circuit (Microsoft in court over federal prosecutors demand for data stored outside US). Support for Microsoft's case has poured in from industry, European governments, civil liberties organizations, and even media: Amazon and Apple, the Electronic Frontier Foundation and the American Civil Liberties Union, and CNN and the Washington Post all signed on to amicus briefs in the case.
The Irish government backed Microsoft as well, arguing that the US could pursue the data through existing treaties with Ireland rather than trying to circumvent the country's sovereignty with a US-based search warrant. ''Foreign courts are obliged to respect Irish sovereignty,'' the country's lawyers argued in a legal brief.
The case has garnered international attention and has been a lightning rod for debates about how and when law enforcement should be able to access online data.
The Supreme Court seemed to tip in favour of extending government access to online information, regardless of where the data is stored, when it approved changes to Rule 41 in April. The change would allow judges to issue search warrants for electronic media even if it is not located in the judge's county (Congress is currently working to block the changes).
However, the 2nd Circuit wasn't swayed by the Supreme Court's acceptance of the Rule 41 modifications. Judge Susan Carney wrote in the court's decision that Rule 41 only expanded a judge's authority to issue warrants within US territory, not beyond it.
''The application of the Act that the government proposes ? interpreting 'warrant' to require a service provider to retrieve material from beyond the borders of the United States ?would require us to disregard the presumption against extraterritoriality,'' Carney wrote. ''We are not at liberty to do so.''
Although the government may appeal the case further and it may eventually land before the Supreme Court, Microsoft celebrated its victory.
''We obviously welcome today's decision by the Second Circuit Court of Appeals,'' Microsoft's president and chief legal officer Brad Smith said in a statement. ''It makes clear that the US Congress did not give the US Government the authority to use search warrants unilaterally to reach beyond US borders. As a global company we've long recognised that if people around the world are to trust the technology they use, they need to have confidence that their personal information will be protected by the laws of their own country.''
The court's decision will likely be hailed as a win by other industry giants. Many companies rely on overseas data centres for their infrastructure, and Ireland is a particularly popular location - Google, Facebook, and other companies all use data centres there because of its cool climate and tax incentives.
However, the ruling could drive governments to push for data localisation rules that would require companies to store data within their borders.
''The Microsoft case is a real world data point that sort of summarises a situation that's been happening over the last several years,'' Lee Tien, a senior staff attorney for the EFF, explained. ''The data that cops normally look at or normally want to get for criminal investigations, even for garden variety sorts of investigations as opposed to terrorism, is often going to be found in the servers of a company that's in the cloud. And therefore the server may be located outside of the territorial jurisdiction of the country that is investigating.''
As law enforcement struggles to access data, legislators might use the excuse to require companies to store user data locally. Russia enforces a data localization rule, and Brazil and France have considered similar legislation.
Although Microsoft has triumphed in this case, its other battle with the US Government continues - the company is still suing the Justice Department over gag orders that prevent it from informing customers when the government demands access to their data.
