Want your documents safe protected from U.S. snooping? Store them on servers located outside the United States. That's the lesson from Microsoft's landmark win in the Second Circuit, yesterday.
In that case, a unanimous 3-judge panel ruled that communications controlled by American companies but stored on foreign servers are outside of the reach of domestic warrants issued under the federal Stored Communications Act. Microsoft is believed to be the first company to challenge such warrants and its win has been hailed as a victory by privacy advocates.
SCA as Privacy Protector
The case arose after the government sought a warrant for emails kept on Microsoft's "electronic communications services," under suspicion that a customer's account was being used for narcotics trafficking. That information was held on Microsoft's servers in Dublin, Ireland and, Microsoft argued, outside the jurisdictional reach of the warrant. The company sought to quash the warrant, was rejected and held in contempt, and soon found itself before the Second Circuit.
There, things turned around for the tech giant. The Stored Communications Act's warrant provisions, Judge Susan L. Carney wrote for the panel, do not apply extraterritorially. The court rejected the government's claim that the warrant was simply an instrument intended to "compel disclosure," similar to a subpoena, and found that "the focus of those provisions is to protect a user's privacy interests."
Avoiding a Free-For-All
Microsoft may have been the first company to challenge such warrants, but it had plenty of tech players in its corner, according to Reuters. Everyone from Fox News to Apple and the U.S. Chamber of Commerce to Cisco Systems filed amicus briefs in support of the company's position.
Had the government come out victorious, "it would have been like the Wild West, with no clear, stable legal rules applying," the Center for Democracy & Technology's senior counsel, Greg Nojeim, told Reuters. Microsoft had cautioned the court that such an outcome could unleash a "free-for-all," leading law enforcement from other countries to attempt to seize emails stored in the United States. Indeed, concern for "comity" between nations pervades the Second Circuit's opinion and Judge Gerard E. Lynch wrote a separate concurrence to emphasize the international law implications of the government's position.
Of course, that doesn't mean that foreign-stored information is totally out of the reach of criminal investigators. As Judge Carney noted, existing treaties already exist to allow cross-border cooperation that could result in the production of the foreign-stored emails.
- Microsoft Wins Appeal Over U.S. Government Access to Emails Held Overseas (PCWorld)
- Microsoft Doesn't Have to Turn Over Emails on Foreign Servers (FindLaw's U.S. Second Circuit Blog)
- Microserf Proposes Solving Tech Problems With Medieval Law (FindLaw's Technologist)
- Say Goodbye to Microsoft OneDrive's Unlimited Cloud Storage (FindLaw's Technologist)