Privacy Law

US prosecutors can't 'conscript' Microsoft to turn over email stored in Ireland, company argues

Microsoft Corp. is asking a federal judge in New York to overturn a magistrate’s order requiring the company to give prosecutors email stored on a server in Ireland.

In a brief (PDF) filed on Friday, Microsoft argued the warrant issued under the Electronic Communications Privacy Act “purports to authorize the government to search any and all of Microsoft’s facilities worldwide.” The New York Times and the Washington Post have stories on Microsoft’s attempt to block prosecutors’ access to the overseas email in a drug-trafficking investigation.

“The government cannot seek and a court cannot issue a warrant allowing federal agents to break down the doors of Microsoft’s Dublin facility,” the Microsoft brief says. “Likewise, the government cannot conscript Microsoft to do what it has no authority to do itself—i.e., execute a search warrant abroad.”

U.S. Magistrate Judge James Francis refused to quash the search warrant in an April order rejecting the idea that the warrant was subject to the same restrictions as a traditional search warrant, the stories say. Francis said the Electronic Communications Privacy Act had created a “hybrid” warrants category for data held by information service providers that is part search warrant, with a requirement of probable cause, and part subpoena, in that the company supplies the information.

“It has long been the law that a subpoena requires the recipient to produce information in its possession . . . regardless of the location of that information,” Francis wrote.

If warrants obtained under the act were treated as conventional search warrants, Francis said, the government’s burden would be substantial. Criminals could give their information service providers false addresses, so that their accounts would be on servers outside the United States. To obtain the data, the government would have to rely on the “slow and laborious process” of a mutual legal assistance treaty.

According to the Times, “Privacy experts are concerned that the judge’s order, if it stands, will open the gate to unchecked investigations in the digital world, of anyone, anywhere.” A brief filed by Verizon on Tuesday supports Microsoft.

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