Microsoft’s appeal of the U.S. government’s efforts to obtain customer email stored on a server in Ireland has drawn support from privacy advocates like the ACLU as well as its business rivals, including Apple, AT&T, HP, Cisco and Verizon.
The Electronic Frontier Foundation (EFF) is the latest organization to throw its support behind Microsoft filing an amicus brief in the Second Circuit Court of Appeals backing the company’s claims that a U.S. government warrant does not extend to emails stored on a server in Ireland.
Microsoft has been locked in a battle with the government and its efforts have met with resistance from the courts. In 2013 the government tried to act on a search warrant to get to the content of emails on a server in Dublin — the non-content data was stored in the U.S. Microsoft refused but a federal magistrate ordered the company in April to turn over the emails. The tech giant then filed an appeal in a federal district court but the judge sided with the government. Microsoft has now appealed decision to the Second Circuit.
The EFF brief contended that when copies of the email were turned over to the government that would constitute “Fourth Amendment seizure” since the user would lose “the ability to decide who gets the messages and for what purposes.” The privacy advocates also argue that the government and lower courts are making an “inaccurate analogy to subpoenas” when they try to extend the warrant’s reach to emails stored outside of this country.
Microsoft had been held in contempt of court back in July for not complying with a ruling that required it to relinquish the emails, which at the time was seen as opening a way for Microsoft to appeal the government request for data. The company filed its appeal December 8, which, according to a blog post penned by Brad Smith, Microsoft General Counsel & Executive Vice President, Legal and Corporate Affairs, asks the Court to consider how the U.S. government “might react if the shoe was on the other foot” and a foreign government was “demanding that a foreign company with offices in the United States produce the personal communications of an American journalist.”
The appeals brief begins with a colorful example:
“Imagine this scenario. Officers of the local Stadtpolizei investigating a suspected leak to the press descend on Deutsche Bank headquarters in Frankfurt, Germany. They serve a warrant to seize a bundle of private letters that a New York Times reporter is storing in a safe deposit box at a Deutsche Bank USA branch in Manhattan. The bank complies by ordering the New York branch manager to open the reporter’s box with a master key, rummage through it, and fax the private letters to the Stadtpolizei.”
The Microsoft case is seen as a potential game-changer for privacy law and has drawn the support of rival factions, who concerns about government overstepping its bounds with its growing volume of requests for customer data.