Microsoft finds support in its fight to keep customer data from the government
Microsoft has found new allies in its fight with the United States government. The company revealed on Monday that media organizations, technology companies, industry associations, advocacy groups, and leading computer scientists have signed amicus briefs in support of its argument that the US can't order the company to hand over data stored in other countries.
The problem stems from the government's belief that a warrant issued last December could force Microsoft to provide customer information even if it resides outside the US. Microsoft disagrees, and after a court sided with the government, it appealed the decision. Now it's seeking -- and apparently finding -- support from others concerned about the court's ruling.
"We believe that when one government wants to obtain email that is stored in another country, it needs to do so in a manner that respects existing domestic and international laws," Microsoft's general counsel, Brad Smith, wrote in a blog post about the new support. "In contrast, the U.S. Government’s unilateral use of a search warrant to reach email in another country puts both fundamental privacy rights and cordial international relations at risk."
Several organizations, including the American Civil Liberties Union, the Electronic Frontier Foundation, and the Brennan Center for Justice, also believe the court's decision undermines the Fourth Amendment. As the EFF writes in a blog post about the amicus brief these groups filed with the Second Circuit Court of Appeals to support Microsoft's appeal against the ruling:
One of the arguments made by the government and accepted by the lower courts is that the government has the power to seize emails in Ireland using a US search warrant because this warrant is executed like a subpoena. [...] But as we explain in our amicus brief, any analogy to a subpoena must be rejected because the data at issue here are the contents of emails, which the government cannot obtain with merely a subpoena. Instead, the Fourth Amendment requires the government obtain emails with a search warrant. Although the government did obtain a warrant here, extending the warrant's reach to emails stored abroad should not rest on an inaccurate analogy to subpoenas.The groups also argue that a Fourth Amendment "moment" doesn't occur when someone views the emails, as the government has argued, but instead when those emails are collected. Here's the EFF explaining the position outlined in its amicus brief, from the same blog post:
The Fourth Amendment event [occurs] when Microsoft copies the emails to turn over to the government. That moment is a Fourth Amendment 'seizure' since at that point, there is a meaningful interference with the email user's right to possess and ultimately control his messages. In other words, once these emails are copied, the user loses the ability to decide who gets the messages and for what purposes. A contrary decision has serious privacy implications as it allows the government to adopt a 'seize first, search later' view of the Fourth Amendment, where the government can seize a computer, copy all of its data, and keep that information indefinitely—without a search warrant at all.Those fears have prompted 86 companies, organizations, and individuals to sign the nine amicus briefs filed in support of Microsoft's case. Smith notes in his blog post that this level of support isn't often seen outside of Supreme Court cases -- that this issue has received so much attention despite this fact demonstrates the importance of the underlying legal arguments.
The case also lends support to fears that the US government will gather information about a company's international customers without thinking about international laws. (Or even laws closer to home: as Wired reports, the government's argument that this warrant applies abroad should have been taken to Congress for approval.) Now the government is openly arguing that it can gather data from other countries simply because it's held by a company based in the US.
[illustration by Brad Jonas]