Microsoft fights US warrant demanding information from overseas servers

Microsoft is attempting to fend off a search warrant served by federal prosecutors in the United States because the tech giant says the government lacks the authority to compel the company for customer data that’s stored overseas.

Experts are already saying that Microsoft’s attempt to squash a search warrant served last December marks the first time that a major company has fought requests from the Justice Department for digital information held on overseas servers. If the Silicon Valley corporation fails to win, however, then a precedent could be established to ensure prosecutors in the US will in the future have little problem asking for digital files even if that data lacks all other ties to America.

Much of the case in question remains under seal, including the identity and nationality of the Microsoft customer whose data is sought by US investigators. What’s certain, though, is that a federal magistrate judge in New York granted a search warrant as part of a criminal inquiry last December that asked Microsoft of Washington state for emails pertaining to a customer who claimed to reside outside of the US.

Microsoft, as do other major tech companies who hold data on the digital cloud, no longer stores all information within the US, but at interconnected facilities around the world so that customers abroad can more quickly access their accounts. In this instance, Microsoft said it would not supply US prosecutors with the contents of the requested email account because the information sought was stored in Dublin, Ireland, beyond the reach of a domestic search warrant.

US Magistrate Judge James C. Francis IV of the New York court refused in April an initial attempt from Microsoft to quash the warrant, prompting Microsoft to challenge the government’s request in a filing made public just this week. Attorneys for Verizon, a telecommunications provider, have since filed a friend-of-the-court brief, and the Electronic Freedom Foundation, a privacy group, plans to soon do the same.

“Congress has not authorized the issuance of warrants that reach outside US territory,” attorneys for Microsoft wrote in the brief filed last Friday. “The government cannot seek and a court cannot issue a warrant allowing federal agents to break down the doors of Microsoft’s Dublin facility.”

Ellen Nakashima of the Washington Post wrote on Monday that Brad Smith, Microsoft’s general counsel, likened the government’s request to a “general warrant” issued by the British in the Colonial era.

“It, in fact, tells Microsoft to go from building to building to building and go from country to country to country throughout the cloud of Microsoft data centers. . .to find and turn over the information that the government seeks,” she quoted Smith as saying at a speech last week at the Personal Democracy Forum. “It is, in a sense, the broadest possible warrant that one literally can imagine in the twenty-first century.”

Others, like Verizon, say that letting the warrant stand would all but encourage foreign governments to claim they have the power to search digital files held, for instance, in the US.

“The Russian government, for example, might demand that a local affiliate of a US cloud services provider disclose the data of a US company negotiating a large corporate transaction with a Russian state-owned enterprise, or that of an American human rights group that has challenged an action of the Russian government in a fashion deemed to violate Russian law. Following the magistrate’s reasoning, Russian officials could order the provider’s Russian affiliate to obtain the target’s data from the US and turn them over to the Russian authorities in Moscow,” lawyers for Verizon wrote in the amicus brief supporting Microsoft they filed with the court on Monday. “This is not a result that the U.S. government — or American companies or citizens — would find tolerable. Yet it is precisely what the magistrate’s decision invites.”

On its part, the government has so far argued that ordering data held on overseas servers does not constitute a violation of the protections against unlawful search and seizures guaranteed by the US Constitution because such a “search” does not exist until the sought after contents is actually read — something that would happen on US soil.

The judge opined that the search would take place only when the e-mails were opened and read — and that would be in the United States. Microsoft argues that the search and seizure take place when the government compels technicians to search for and retrieve data that resides on the Dublin servers.

Preet Bharara, United States attorney for the Southern District of New York, wrote in opposing Microsoft’s request to quash that Internet companies may purposely try to avoid complying with a search warrant “simply by storing the data abroad,” and a win for Microsoft would be “a dangerous impediment to the ability of law enforcement to gather evidence of criminal activity.”

Oral arguments in the case are scheduled for late next month in New York City.