Search war­rant for emails, an is­sue in US ap­peals case

Kuwait Times - - INTERNATIONAL -

On the sur­face, the in­ves­ti­ga­tion was rou­tine. Fed­eral agents per­suaded a judge to is­sue a war­rant for a Mi­crosoft email ac­count they sus­pected was used for drug traf­fick­ing. But USbased Mi­crosoft kept the emails on a server in Ire­land. Mi­crosoft said that meant the emails were be­yond the war­rant’s reach. A fed­eral ap­peals court agreed. Late last month, the Trump ad­min­is­tra­tion asked the Supreme Court to in­ter­vene.

The case is among sev­eral le­gal clashes that Red­mond, Wash­ing­ton-based Mi­crosoft and other tech­nol­ogy com­pa­nies have had with the gov­ern­ment over ques­tions of dig­i­tal pri­vacy and au­thor­i­ties’ need for in­for­ma­tion to com­bat crime and ex­trem­ism. Pri­vacy law ex­perts say the com­pa­nies have been more will­ing to push back against the gov­ern­ment since the leak of clas­si­fied in­for­ma­tion de­tail­ing Amer­ica’s sur­veil­lance pro­grams.

An­other is­sue high­lighted in the ap­peal is the dif­fi­culty that judges face in try­ing to square decades-old laws with new tech­no­log­i­cal de­vel­op­ments. In the lat­est case, a sus­pected drug traf­ficker used Mi­crosoft’s email ser­vice. In 2013, fed­eral in­ves­ti­ga­tors ob­tained a war­rant un­der a 1986 law for the emails them­selves as well as iden­ti­fy­ing in­for­ma­tion about the user of the email ac­count. Mi­crosoft turned over the in­for­ma­tion, but went to court to de­fend its de­ci­sion not to hand over the emails from Ire­land.

The fed­eral ap­peals court in New York agreed with the com­pany that the 1986 Stored Com­mu­ni­ca­tions Act does not ap­ply out­side the United States. The ad­min­is­tra­tion’s Supreme Court ap­peal said the de­ci­sion is dam­ag­ing “hun­dreds if not thou­sands of in­ves­ti­ga­tions of crimes - rang­ing from ter­ror­ism, to child pornog­ra­phy, to fraud.” The emails, the ad­min­is­tra­tion noted, may re­side on a server some­where, but said Mi­crosoft can re­trieve them “do­mes­ti­cally with the click of a com­puter mouse.”

Mi­crosoft’s pres­i­dent, Brad Smith, said in a blog post fol­low­ing the high court ap­peal that the ad­min­is­tra­tion’s po­si­tion “would put busi­nesses in im­pos­si­ble con­flict-of-law sit­u­a­tions and hurt the se­cu­rity, jobs, and per­sonal rights of Amer­i­cans.” Tech­nol­ogy com­pa­nies and pri­vacy ex­perts are among those watch­ing the case closely. “This is a big deal in an era of a global in­ter­net. Servers are not just in the United States. They’re all over the world, and fig­ur­ing out the rules for for­eign-stored data is re­ally im­por­tant, not just for us, but for for­eign gov­ern­ments,” said Orin Kerr, a Ge­orge Wash­ing­ton Univer­sity law pro­fes­sor whose work is cited in the ap­pel­late rul­ing.

One prob­lem iden­ti­fied by Kerr and other pri­vacy schol­ars is that courts might not be the best place to re­solve these is­sues. Should the same rules ap­ply to the emails of an Amer­i­can ci­ti­zen and a for­eigner? Does it mat­ter where the per­son is liv­ing? “The Supreme Court can’t an­swer these ques­tions in the nu­anced way that’s needed,” said Jen­nifer Daskal, an Amer­i­can Univer­sity law pro­fes­sor. Even Judge Ger­ard Lynch on the New York panel that sided with Mi­crosoft called for “con­gres­sional ac­tion to re­vise a badly out­dated statute.” — AP

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