In fact, President Obama’s administration states that any company with operations in the United States must conform with valid court warrants for data, even if the material is stored overseas. It’s a position Microsoft and companies like Apple say is wrong, disagreeing that the administration of US law stops at the border.
A magistrate judge has already sided with the government’s position, ruling in April that “the basic concept that an entity legally responsible to produce data must do so regardless of the location of that information.” Microsoft appealed to a federal judge, and the case is set to be heard on July 31.
In its briefs recorded last week, the US government said that material stored online doesn’t enjoy the same type of 4th Amendment protections as data stored in the physical world. The government mentioned (PDF) the Stored Communications Act (SCA), a President Ronald Reagan-era regulation:
Overseas information must be revealed locally when a valid subpoena, order, or warrant obliges their development. The disclosure of records under such conditions has never been regarded equivalent to a physical search under Fourth Amendment principles, and Microsoft is mistaken to argue that the SCA provides for an overseas search here. As there is no overseas search or seizure, Microsoft’s dependency on concepts of extra-territoriality and comity falls wide of the mark.
Microsoft said the decision has wide-ranging, global implications. “Congress has not approved the issuance of warrants that reach outside US territory,” Microsoft’s attorneys wrote. “The government cannot seek and a court cannot issue a warrant allowing federal agents to break down the doors of Microsoft’s Dublin facility.”
Organizations like Apple, AT&T, Cisco, and Verizon agree. Verizon said (PDF) that a final decision favoring the US would create “dramatic conflict with foreign data protection laws.” Apple and Cisco said (PDF) that the technology industry is set “at risk” of being sanctioned by foreign governments and that the US should seek cooperation with foreign countries via agreements, a position the US said is not realistic.
The Justice Department said global authority is required in an age when “digital communications are used substantially by criminals of all types in the US and abroad, from scammers to cyber criminals to drug dealers, in furtherance of violations of US law.”
The e-mail the US authorities are seeking from Microsoft issues a drug-trafficking investigation. Microsoft often stores e-mail on servers closest to the account holder.
The senior counsel for the Irish Supreme Court published in a recent filing that a US-Ireland “Mutual Legal Assistance Treaty” was the “efficient” avenue (PDF) for the US government to get the e-mail held on Microsoft’s external servers.
Orin Kerr, a Fourth Amendment expert at George Washington University, said, “The scope of the privacy laws around the globe is now a very important question, and this is the start of what may be a lot of lawsuits on the concern. So it’s a big case to watch.”