[Infowarrior] - Microsoft wins landmark appeal over seizure of foreign emails

[Richard Forno]

reuters.com
Microsoft wins landmark appeal over seizure of foreign emails
By Jonathan Stempel

http://www.reuters.com/article/us-microsoft-usa-warrant-idUSKCN0ZU1RJ

NEW YORK A federal appeals court on Thursday said the U.S. government cannot force Microsoft Corp and other companies to turn over customer emails stored on servers outside the United States.

The 3-0 decision by the 2nd U.S. Circuit Court of Appeals in Manhattan is a defeat for the U.S. Department of Justice, and a victory for privacy advocates and for technology companies offering cloud computing and other services around the world.

Circuit Judge Susan Carney said communications held by U.S. service providers on servers located outside the United States are beyond the reach of domestic search warrants issued under the Stored Communications Act, a 1986 federal law.

"Congress did not intend the SCA's warrant provisions to apply extraterritorially," she wrote. "The focus of those provisions is protection of a user's privacy interests."

Microsoft had been challenging a warrant seeking emails stored on a server in Dublin, Ireland, in a narcotics case.

It was believed to be the first U.S. company to challenge a domestic search warrant seeking data held outside the country.

Thursday's decision reversed a July 2014 ruling by then-Chief Judge Loretta Preska of the U.S. District Court in Manhattan requiring Microsoft to turn over the emails. It also voided a contempt finding against the company.

Peter Carr, a Justice Department spokesman, said the agency was disappointed in the decision and was reviewing its legal options. Microsoft did not respond to requests for comment.

The case has attracted strong interest from the technology and media sectors, amid concern that giving prosecutors expansive power to collect data outside the country could make it harder for U.S. companies to compete there.

Dozens of companies, organizations and individuals filed briefs supporting Microsoft's appeal, including the U.S. Chamber of Commerce, Amazon.com Inc, Apple Inc, Cisco Systems Inc, CNN, Fox News Network, Gannett Co and Verizon Communications Inc.

Had the court gone the other way, "it would have been like the Wild West, with no clear, stable legal rules applying," Greg Nojeim, senior counsel with the nonprofit Center for Democracy & Technology in Washington, D.C., said in an interview.

"FREE-FOR-ALL" WAS FEARED

Microsoft had said the warrant could not reach emails on the Dublin server because U.S. law did not apply there.

The Redmond, Washington-based company also said enforcing the warrant could spark a global "free-for-all," where law enforcement authorities elsewhere might seize emails belonging to Americans and stored in the United States.

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Federal prosecutors countered that quashing warrants such as Microsoft's would impede their own law enforcement efforts.

But Judge Carney said limiting the reach of warrants serves "the interest of comity" that normally governs cross-border criminal investigations.

She said that comity is also reflected in treaties between the United States and all European Union countries, including Ireland, to assist each other in such probes.

Some law enforcement officials have said obtaining such assistance can, nonetheless, be cumbersome and time-consuming.

Circuit Judge Gerard Lynch concurred in the judgment, and urged Congress to update the "badly outdated" 1986 law to strike a better balance between current law enforcement needs and users' privacy interests and expectations.

He said the law as it stands lets Microsoft thwart an otherwise justified demand to turn over emails by the "simple expedient" of choosing to store them outside the United States.

"I concur in the result, but without any illusion that the result should even be regarded as a rational policy outcome, let alone celebrated as a milestone in protecting privacy," he wrote.

The case is In re: Warrant to Search a Certain E-Mail Account Controlled and Maintained by Microsoft Corp, 2ndU.S. Circuit Court of Appeals, No. 14-2985.

(Reporting by Nate Raymond and Jonathan Stempel in New York, and Diane Bartz and Dustin Volz in Washington, D.C.; Editing by Jonathan Oatis)

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