Judge: U.S. Search Warrants Apply to Emails Stored on Foreign Servers

A district court judge ruled Thursday that Microsoft must comply with law-enforcement demands even for user data stored on servers in Ireland.

National Journal
Dustin Volz
July 31, 2014, 12:30 p.m.

A fed­er­al judge ruled Thursday that U.S. law-en­force­ment au­thor­it­ies can force Mi­crosoft to hand over emails that are stored on serv­ers in Ire­land.

U.S. Dis­trict Judge Lor­etta Preska said that Mi­crosoft must com­ply with search war­rants even when the data in ques­tion is hos­ted abroad, ac­cord­ing to re­ports from the As­so­ci­ated Press.

Preska reasoned that the loc­a­tion of the data is ir­rel­ev­ant when con­sid­er­ing who owns that data—in this case, a U.S.-based cor­por­a­tion.

Lor­etta stayed her rul­ing, mean­ing it will not go in­to ef­fect un­til Mi­crosoft can ap­peal. The com­pany quickly prom­ised it would do so.

“The only is­sue that was cer­tain this morn­ing was that the Dis­trict Court’s de­cision would not rep­res­ent the fi­nal step in this pro­cess,” said Brad Smith, Mi­crosoft gen­er­al coun­sel and ex­ec­ut­ive vice pres­id­ent. “We will ap­peal promptly and con­tin­ue to ad­voc­ate that people’s email de­serves strong pri­vacy pro­tec­tion in the U.S. and around the world.”

A bevy of tech­no­logy com­pan­ies, in­clud­ing Apple, Ve­r­i­zon, and AT&T, and a num­ber of open-In­ter­net groups joined Mi­crosoft in ar­guing that private email con­tents should be off-lim­its to law en­force­ment if the data is stored abroad.

“The fun­da­ment­al flaw in the court’s ana­lys­is is that a cus­tom­er’s stored emails are the busi­ness re­cords of Mi­crosoft. They’re not,” said James De­mp­sey, seni­or coun­sel with the Cen­ter for Demo­cracy and Trans­par­ency. “They are the prop­erty of the sub­scriber, and the U.S. gov­ern­ment should not be able to force Mi­crosoft or any­one else to per­form a search and seizure in an­oth­er coun­try.”

AT&T said it was “ex­tremely dis­ap­poin­ted” with the court’s de­cision and would sup­port Mi­crosoft’s ap­peal.

The Elec­tron­ic Com­mu­nic­a­tions Pri­vacy Act, passed in 1986, does not ex­pli­citly ad­dress wheth­er law en­force­ment can re­quire a U.S. com­mu­nic­a­tions pro­vider to hand over data stored bey­ond Amer­ic­an soil. That am­bi­gu­ity promp­ted lit­ig­a­tion when the South­ern Dis­trict of New York sent a search war­rant to Mi­crosoft ask­ing for the con­tent of an ac­count con­nec­ted to a data cen­ter in Dub­lin, Ire­land, where the com­pany has kept some email data since 2010.

Mi­crosoft ar­gued that the gov­ern­ment was ex­tend­ing its au­thor­ity in­to oth­er coun­tries by al­low­ing war­rants to ap­ply to data held over­seas, and warned that such a pre­ced­ent could make U.S. in­form­a­tion more ap­peal­ing and vul­ner­able to for­eign gov­ern­ments, such as China.

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