Reach of search war­rant for emails at is­sue in ap­peals case

Kuwait Times - - TECHNOLOGY -

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 US-based 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.

Con­flict of law

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.” The Stored Com­mu­ni­ca­tions Act be­came law long be­fore the ad­vent of cloud com­put­ing. To the ex­tent per­sonal in­for­ma­tion was kept on­line, it was mainly on per­sonal com­put­ers. To­day, com­pa­nies build data cen­ters around the world to keep up with their cus­tomers’ de­mands for speed and ac­cess.

Mem­bers of Congress have in­tro­duced leg­is­la­tion to up­date the law, but noth­ing has been en­acted. Sen. Or­rin Hatch, RU­tah, op­poses the ad­min­is­tra­tion’s ap­peal, but said in a state­ment that “Congress can and should mod­ern­ize data pri­vacy laws to en­sure that law en­force­ment can ac­cess ev­i­dence in a timely man­ner.” Mi­crosoft also sup­ports re­vis­ing the law. The com­pany also is among those challenging “gag or­ders” that pre­vent ser­vice providers from no­ti­fy­ing cus­tomers that their data have been turned over to the gov­ern­ment un­der court or­der.

Com­pa­nies have been more will­ing to as­sert their cus­tomers’ and their own pri­vacy in­ter­ests since former Na­tional Se­cu­rity Agency con­trac­tor Ed­ward Snow­den’s leak of clas­si­fied US ma­te­rial about Amer­ica’s sur­veil­lance pro­grams, Kerr said. The tech­nol­ogy com­pa­nies wield enor­mous power, per­haps more than gov­ern­ments do, in shap­ing the scope of dig­i­tal age pri­vacy rights, Daskal said. The com­pa­nies de­cide “what to re­tain, where to keep it, for how long, and whether to en­crypt it,” she said. And when gov­ern­ments pro­duce court or­ders for cus­tomers’ in­for­ma­tion, it’s the com­pa­nies’ call about “when to com­ply and when to re­sist,” Daskal said. The jus­tices won’t de­cide whether to hear US v. Mi­crosoft, 17-2, be­fore the fall. If they do, ar­gu­ments wouldn’t oc­cur un­til next year. —AP

RED­MOND: This July 3, 2014, file photo, shows the Mi­crosoft Corp. logo out­side the Mi­crosoft Vis­i­tor Cen­ter. —AP

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