US Supreme court to hear Microsoft Privacy Case - Can the US compel production of data stored in Ireland?
As court weighs Microsoft case, rest of world feels a big
stake in privacy ruling
BY TIM JOHNSON February 08, 2018 05:16 PM Updated February 09, 2018 05:52 AM
WASHINGTON - Later this month, Supreme Court justices
will hear a case involving Microsoft’s heated dispute with federal prosecutors
over whether it must turn over data currently hosted in a storage facility in
Ireland. At the heart of the legal dispute is whether U.S. courts can compel a
company to turn over an individual’s data when it is held overseas.
The case has drawn intense global interest, including
more than a dozen legal briefs to the Supreme Court from abroad, in a sign that
some parties believe a ruling may offer a future road map for the internet.
The showdown is unfolding on several fronts. Bills put
forth in both chambers of Congress this week would partially resolve disputes
over law enforcement access to private data held across borders. The bipartisan
bills would obligate service providers in “possession, custody, or control” of
data to turn it over to prosecutors under certain conditions regardless of
where in the world the material is stored.
Still, some mystery surrounds the legal dispute that will
be aired Feb. 27 in Supreme Court chambers. For one, prosecutors have never
identified the person who was targeted in a warrant issued by a New York
district court judge on Dec. 4, 2013.
“We don’t know what the nationality is of the subject …
We know that the case is about drugs. But we don’t know a lot more than that,”
said Gregory T. Nojeim, senior counsel at the Center for Democracy &
Technology, a public policy group in Washington.
Prosecutors demanded from Microsoft all emails and
information associated with the subject’s account, and the Redmond, Washington,
tech giant responded that it could not be forced to turn over information
stored overseas, in this case at a data center in Dublin, Ireland.
At its heart, the case goes to a conundrum of the modern
age: Where does data in “the cloud” actually reside and what sovereign entity
should have control?
“Is the data on the server, wherever the server is
located? Or is the data from wherever you can access that server? Or does the
data not have any location?” asked Faiza Patel, co-director of the Liberty and
National Security Program at the New York University School of Law’s Brennan
Center for Justice. A different program at the NYU law school filed an amicus
brief in the case.
The most pertinent statute on data, the Stored
Communications Act, was passed three decades ago.
“The government relies on a law that was enacted in 1986,
before anyone conceived of cloud computing,” Brad Smith, Microsoft’s president
and chief legal officer, wrote in a blog post Jan. 19.
While prosecutors and big tech companies clash over
access to digital data in the United States, the issue also has broad resonance
overseas, leading some countries to demand that data be stored within their own
borders. Prosecutors abroad also complain of obstacles to conducting probes of
criminal suspects using U.S.-based webmail.
“Eight of the 10 most popular web services and websites
in almost every country in the world, with few exceptions, are American,” said Andrew
K. Woods, a professor at the University of Kentucky College of Law. He added
that foreign requests to companies like Microsoft and Google for email
disclosure have soared.
“The cops in Brazil and the cops in India and the cops in
France, all of the cops in the world, want to issue normal evidence orders in
accordance with local law and they are frustrated or stymied by American
rules,” Woods said.
Woods cited a hypothetical case in which a Londoner is a
suspect in the murder of a fellow Brit, a crime investigated by local police.
“Everything about that case is British,” Woods said, but
police “cannot go to Google and compel Google to give them content of the
suspect’s email account. They have to go through the mutual legal assistance
process. That is not only slow it is also an affront to British sovereignty.”
The U.S. government has struck mutual legal assistance
treaties, or MLATs, with about a third of the world’s countries. The mechanism,
while useful, can clog the wheels of justice.
“It’s a slow and laborious process. … It often takes
months, if not years, for governments to respond,” said Jennifer Daskal, a
former attorney in the National Security Division of the Justice Department who
now teaches law at American University’s Washington College of Law.
More criminal cases than ever involve digital evidence,
she said, and “the volume (of MLAT requests) is just going to keep on
increasing exponentially.”
Something else likely to go unmentioned in the Supreme
Court chambers is the name of Edward Snowden, the former National Security
Agency contractor who spilled secrets about U.S. surveillance programs in 2013
before taking exile in Moscow. Snowden’s acts have shaped views abroad of what
some critics see as the extraterritorial reach of the U.S. government.
“In the wake of the Snowden revelations, levels of trust
around the world in the American government went down,” Woods said. “American
businesses ever since have been scrambling to reassure customers around the
world that they resist the American government.”
The Microsoft case has elicited an outpouring of briefs
from people, organizations and governments around the world. Such amicus briefs
to the Supreme Court are legal documents from non-litigants with a strong
interest in the case.
Outside of the United States, among those filing such
briefs, or joining in them, are the European Commission (on behalf of the
European Union), Ireland, the New Zealand privacy commissioner, law societies
of Europe, the Australian Privacy Foundation and the United Nations special
rapporteur on the right to privacy.
“This case obviously is highly watched,” Daskal said. “A
straight-up win for the government will be perceived, rightly or wrongly, as
the United States claiming authority to access data anywhere without regard to
foreign governments’ countervailing considerations. And that could harm the
U.S. tech industry.”
But if Microsoft prevails, she said, “it may completely
stymie legitimate investigations simply because some or all of the sought-after
data is held outside of the United States.”
The bills now before both chambers of Congress, the
Clarifying Lawful Overseas Use of Data (CLOUD) Act, may provide a more feasible
framework and pave the way for executive agreements that would allow foreign
governments to request data directly from U.S. service providers.
The bills provide "a logical solution for governing
cross-border access to data," five big tech firms, including Microsoft and
Google, said in a letter to the Senate sponsors on Tuesday.
U.S. service providers, under the proposal, would no
longer be shielded when they store data abroad, but it also gives them rights
to challenge the requests. It also would incentivize the executive branch to
reach bilateral agreements with foreign governments that would allow them to
serve direct surveillance demands on U.S. providers.
Not all watchdog groups are in favor of the legislative
proposals. In a statement, the Center for Democracy & Technology said it
"does not believe the CLOUD Act does enough to protect the privacy of
internet users."
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