Microsoft take on USA government in privacy court battle.

  • By Paul Le Fleur

Microsoft is set to return to court to continue its battle against the US government’s snooping demand that it hand over emails stored at a European data centre in Ireland.

The messages involved are alleged to contain details of narcotics sales, although, the US government is not shying away from the fact that they monitor (sometimes in real time) and store all correspondence by email, sms and telephone call.

In 2014, a court ruled in favour of the government’s claim that because it had jurisdiction over the US-based company, it could force it to hand over data it controlled, even if stored abroad. Microsoft however, suggests that, that would put it in breach of privacy laws. Instead, the company argues that the US “must respect the sovereignty of other countries” and has indicated that Washington should use legal assistance treaties if it wants access to information held in Ireland and other data centres outside the United States.

Ireland has already said that it would consider such a request “expeditiously”.

So, the stand-off is being viewed as a test case that will determine the extent of the US government’s powers over tech companies that offer cloud-based services.

Apple, Amazon, HP, eBay, AT&T, Verizon and Salesforce are among US companies that have voiced support for Microsoft’s appeal.
“They think they have already lost quite a lot of business in Europe over monitoring and surveillance concerns, and they are afraid it will get worse if there is a perceived carte blanche for the US authorities to access emails stored abroad,” ~ Carsten Casper, from tech consultancy Gartner.

The EU has stronger privacy requirements, at least on paper, compared with other parts of the world, so tensions between the US and Europe are highest. But other countries are also concerned by US access to foreign records.

Microsoft says that it wants to ensure people can “trust the technology on their desks and in their pockets”.
If the US government is permitted to serve warrants on tech companies in the United States and obtain people’s emails in any country, it will open the floodgate for other countries to serve warrants on tech companies for the private communications of American citizens that are stored in the United States in a data centre owned by a foreign company,” the company’s lawyer Brad Smith recently told the Council on Foreign Relations think tank.

“Imagine the immediate implications for journalists, advocacy organisations, or government officials here.”

Federal prosecutors involved in the case feebly note that it typically takes months to obtain information via treaty requests, while warrants issued directly to US companies can be handled much more quickly. They add that Microsoft’s system of storing data where customers say they are based is open to abuse. Arguing in court that a criminal user can manipulate such a policy to evade the reach of US law enforcement.
They added that, US-based bodies have a legal obligation to comply with warrants issued under the Stored Communications Act, regardless of where the related electronic records are kept. Stating that with the ‘benefits’ of corporate citizenship in the United States come the corresponding responsibilities, including the responsibility to comply with a disclosure order.

In related developments Apple has said it could not comply with a court order to let US government investigators monitor texts sent via its iMessage system, according to a report in the New York Times, which also reports that officials wanted the iPhone-maker to hand over messages in real time.
Apple has said it could not fulfill the demand because the messages are double/end-to-end encrypted | meaning that the messages are digitally scrambled by both the sender’s and receiver’s devices, only the devices in question have the access key. This is no moral stance by Apple as the firm did pass on some messages that had been saved to its iCloud storage service. Apple has not commented on the report.
So if you value your privacy and use iMessage as a form of communication, do not back your messages up to iCloud would seem to be a simple solution to the ever expanding US spying problem.

Electronic Freedom Foundation civil liberties group said that it applauded Apple’s behaviour.
US officials complained that “Microsoft should not be heard to complain that doing so might harm its bottom line.”
Microsoft’s lawyer has said that if it loses the appeal, he will try to take the matter “all the way to the Supreme Court”.

P.Lefleur@theinternational.org.uk