In the case, Microsoft is challenging a court order that would force it to turn over content from a customer’s email account that’s stored in a data center abroad.
Microsoft’s fight to define the limits of government reach on the Internet gets its latest hearing in court this week.
The Redmond company is challenging a court order that it turn over the contents of a customer’s email account, stored in Microsoft’s Ireland data center, arguing that prosecutors exceeded their authority in requesting an email stored abroad.
A panel of judges from the 2nd U.S. Circuit Court of Appeals is to question lawyers for Microsoft and the government Wednesday at a hearing in New York City.
The government’s lawyers say rules governing privacy of electronic communications allow prosecutors to force Microsoft to get the emails. Two federal judges who heard the dispute last year agreed, and Microsoft has appealed the case to the Court of Appeals.
Most Read Business Stories
- Kirkland consultant questioned for six hours in criminal probe of Boeing 737 MAX crashes
- Blue Apron latest to suffer in tough meal kit market
- ‘We had executional misses’ — Nordstrom reports decline in profits and sales
- Supreme Court rejects UPS on Postal Service delivery prices
- As Seattle's new hotels roll out automation to serve guests, workers worry
The case began in December 2013 when a judge in New York signed off on a warrant seeking the contents of an MSN email account as part of a drug-trafficking investigation. It quickly grew into a flashpoint in the debate about the U.S. government’s reach into cyberspace.
U.S. technology companies have rallied behind Microsoft, worried about taking a business hit if their customers abroad don’t trust U.S. law enforcement. They’ve been joined by academics, business and industry groups in signing on to papers advocating for limits on the ability of prosecutors to seek data stored abroad.
(The Seattle Times was among the media companies that joined a court filing supporting Microsoft’s position in the case.)
“At the end of the day, law enforcement is focused on their objective; they don’t take into consideration the other things that companies are worried about, or the political disruption this might cause,” said Michael Vatis, a lawyer who wrote a “friend of the court” brief supporting Microsoft’s position on behalf of Verizon Communications and other technology companies.
“There are so many issues, and the more you dig the more complicated it becomes. There are a lot of complications that the court could get wrapped up in” at the hearing on Wednesday.
A spokeswoman for the U.S. Attorney’s Office for the Southern District of New York, which is prosecuting the case against Microsoft, declined to comment.
Regardless of the outcome, the overarching issue of prosecutors’ ability to request data stored abroad might be decided outside the courtroom, lawyers say.
The Electronic Communications Privacy Act, the law that sets the line between digital privacy and the government’s law-enforcement role, was passed in 1986, when the Internet was in its infancy. Legislators from both major parties are pushing for an update.
The Law Enforcement Access to Data Stored Abroad Act (LEADS), a bill introduced in both houses of Congress this year, would allow prosecutors to seek a warrant to grab data stored abroad only if the data belonged to a U.S. person or company. Otherwise, they would have to make use of existing legal-assistance treaties and request data through foreign law enforcement.
The bill has steadily gained sponsors, including nine of the 12 members of Washington state’s delegation.
Some prominent names in law enforcement, including Michael Chertoff, former secretary of the Department of Homeland Security, and Viet Dinh, the former White House official who helped write the Patriot Act, have pushed for an update to the 1986 electronic-communications act.
“The odds of a legislative fix seem relatively high no matter who wins,” Orin Kerr, a former prosecutor who has written commentary sympathetic to the government’s case, said in a blog post. “The Second Circuit decision may just be a pit stop on the way to Congress.”
That decision will likely not come for months.
Microsoft has indicated that, should judges again rule in favor of prosecutors, it would likely appeal to the Supreme Court. Observers say the government would likely do the same if it loses.