Mi­crosoft, feds clash over email searches

The Denver Post - - NEWS - By Mark Sher­man AP file

WASH­ING­TON» 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 U.S.-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, Wash.-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.”

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, R-Utah, 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 U.S. 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 U.S. v. Mi­crosoft, 17-2, be­fore the fall. If they do, ar­gu­ment wouldn’t oc­cur un­til next year.

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