Microsoft and the Department of Justice will square off today before a federal appeals panel in Manhattan in a case that has implications for digital privacy and the flow of data across borders.
The appeal marks a return to court of a dispute that began nearly two years ago when DOJ obtained a search warrant to seize emails belonging to a suspect in a narcotics trafficking investigation.
Microsoft objected to the warrant, asserting it sought emails from a data center owned by the company in Dublin, where, the company argues, the U.S. has no jurisdiction to seize records. Two lower courts backed DOJ, ruling the warrant was valid because Microsoft controls the data from the U.S. regardless where the emails happen to be stored.
The appeal comes amid lingering tensions between the U.S. and European Union over digital privacy in the wake of revelations about the extent of spying by the National Security Agency and raises a question of how much control over information a nation has within its borders.
Microsoft argues that neither the Fourth Amendment nor the Stored Communications Act, a federal law that limits the ability of the government to force email providers to turn over customer communications absent a court order, apply outside the U.S.
“If the government prevails here, the United States will have no ground to complain when foreign agents—be they friend or foe—raid Microsoft’s offices in their jurisdictions and order them to download U.S. citizens’ private emails from computers located in this country,” the company wrote in court papers.
But the warrant simply demands production of records by Microsoft, a company subject to U.S. jurisdiction, counters the government. “Under long settled precedent, the power of compelled disclosure reaches records stored abroad so long as there is personal jurisdiction over the custodian and the custodian has control over the records,” DOJ argues.
According to the government, a warrant issued pursuant to the Stored Communications Act operates like a subpoena, in that it obligates the provider to turn over the records and does not require a law enforcement officer to search the premises.
Tech companies and civil liberties groups that have weighed in on behalf of Microsoft reject the analogy. “The Fourth Amendment requires the government obtain emails with a search warrant,” wrote the Electronic Frontier Foundation, the ACLU, the Brennan Center, and The Constitution Project in a friend-of-the-court brief. “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.”
A ruling in the government’s favor could spur other countries to serve warrants on tech companies for the private messages of Americans that are stored in U.S. data centers owned by companies based abroad, experts say.
A win for the government also could encourage more tech companies to encrypt messages in ways that make them impossible to read unless the recipient decodes them. Apple recently refused to turn over iMessages sought by the government, saying it couldn’t get access to the messages because they are encrypted. The dustup highlights an ongoing debate over the use of encryption and the government’s ability to unlock data when the needs of law enforcement and national security demand.