United States of America v. In the matter of a Warrant to Microsoft, Inc.
In October 2017, the Supreme Court agreed to hear this case that is being closely watched by major tech firms.
The question is this: can American law enforcement, with a valid warrant, obtain data physically held abroad by an American company? Microsoft argues that no, any data held abroad cannot be touched by an American court order, while the Department of Justice argues that this allows companies to easily defy judicial orders.
This particular case revolves around email held in an Outlook account in Ireland—it is not publicly known what the government hopes would be revealed by acquiring the email, which was sought as part of a drug investigation. Investigators have also not revealed whether the email account owner is American or if that person has been charged with a crime.
American authorities sought this data under the Stored Communications Act. The US government, could, however, use the Mutual Legal Assistance Treaty process as a way to contact Irish authorities to serve a local warrant upon Microsoft's Irish subsidiary, which controls the data center, to obtain the data. That procedure, which may have already been undertaken, is likely slower than a SCA warrant. However, if the government did go ahead with an MLAT request, it was likely to have been fulfilled during the lengthy process of the judicial appeal.
On December 13, 2017, the Republic of Ireland filed its own amicus brief—supporting neither side—arguing essentially that it would comply with an MLAT request "if and when it be made."
Oral argument has been scheduled for February 27, 2018.
-- submitted from IRC
(Score: 5, Insightful) by romlok on Wednesday January 03 2018, @02:14PM (12 children)
Personally, I hope the US government win this one. Not because I want any government to have those powers, but because I know that governments already have those powers, plus the clout to force companies to keep schtum about the use of those powers. A US govt win will give lie to the idea that multinational corporations are able to operate in, and obey the laws of, multiple legally disparate jurisdictions simultaneously.
The only real way to counter overreach by foreign governments is to put local businesses out of reach of foreign powers (covert spy-craft notwithstanding), which means for businesses to operate as entirely separate corporations in separate jurisdictions, both technically and legally. That means no shared assets, ownership, or governance. The only relationship between the companies should be contractual.
Right now, the best example of this kind of relationship that I know of is, perhaps unsurprisingly, Microsoft's Azure operation in Germany. It's not run by Microsoft, but by a subsidiary of Deutsche Telekom: https://azure.microsoft.com/en-us/blog/microsoft-azure-germany-now-available-via-first-of-its-kind-cloud-for-europe/ [microsoft.com]
I would love if more tech companies gave me, either as a customer or service provider to my own customers, a choice of legal jurisdiction for my data and personal information, instead of the typical "US law or GTFO".
(Score: 2, Interesting) by Anonymous Coward on Wednesday January 03 2018, @02:31PM
Yea, the problem is that tech companies currently have it both ways, they can say both of these things with a straight face:
- nyah nyah, we are a US company and obey US laws for data handling, so screw your local regional laws!
- nyah nyah, we use foreign servers so we aren't subject to US laws we don't like!
That said - the courts are the people that interpret the laws. You can imagine a few versions of the future:
- nyah nyah, we are a US company and obey US laws for data handling on our US servers, so screw your local regional laws!
- nyah nyah, we are a Czech company with US servers so our servers aren't subject to US laws we don't like!
(Score: 2) by Demena on Wednesday January 03 2018, @03:31PM (1 child)
While what you say is true there is a downside to a DOJ win. It gives more power to law enforcement bodies that they do not need. They did not use procedures that are designed to give the what they want (MLAT). The multi-nationals are under attack from many governments for avoiding taxes and such. Thins are already starting to change. Things are improving, working. Slowly but working. There is no need to grant government institutions more power than they already have. There is always danger in handing the government more power.
I do like the idea that you have of eliminating multi nationals, although I feel that it might be regressive, might slow progress, some progress is happening too fast for us to adapt.
(Score: 0) by Anonymous Coward on Wednesday January 03 2018, @11:38PM
governments stealing more money for taxes is not "improving" anything, you ridiculous slave.
(Score: 4, Interesting) by DannyB on Wednesday January 03 2018, @04:30PM (3 children)
A US win here would definitely put the other 96 % of the world population1 on notice that the US doesn't respect their sovereignty. Not one bit.
It would help the Trump administration to further withdraw and distance the US from its former position of global leadership and authority.
-=-=-=-=-=-=-=-=-
1on the green site, once, some idiot said [citation needed], to which I replied: (1) google US population, (2) google world population, (3) use a sophisticated mathematical technique called division
To transfer files: right-click on file, pick Copy. Unplug mouse, plug mouse into other computer. Right-click, paste.
(Score: 0) by Anonymous Coward on Wednesday January 03 2018, @05:51PM
The real question here is whether such a request is a "warrant" (for seizure of property) or "subpoena" (ordering someone to produce information). For a "subpoena" the case is already clear. As an example, a judge can issue a subpoena to a *person* to produce extensive information on their shell companies held abroad. Failure to produce the information results in being held in contempt (jail time). That said, it didn't violate the autonomy of the foreign nation. Similarly, you can't subpoena someone to produce something that they cannot produce.
In this instance, however, the subpoena was to Microsoft, who was not particularly on trial or complicit in whatever crime took place. "You have the information and we want it" isn't really a good enough reason to get it - hence the warrant from a judge.
Everyone notes that the enforcement agents *have* the authority to go to the foreign nation to get the information - but they don't want to, as some nations don't cooperate for various reasons (Switzerland/privacy, Russia/spite).
(Score: 1, Insightful) by Anonymous Coward on Wednesday January 03 2018, @08:16PM (1 child)
Sovereignty has nothing to do with this. A win would put the 96% of the world population on notice that the US Government can force US companies to obey them. Or rather, it would put the world on notice that the US government thinks that this is fair game and is willing to force Microsoft to comply; there is no doubt in anybody's mind that the US Government can force Microsoft to do anything.
Of note, see the "controversy" around Kaspersky software and the US Government no longer using them. Do you really think if the Kremlin were to lean on them that they would disobey a request to do something? Sure the Kremlin (officially) doesn't, but if they really wanted to push it, the Kaspersky would fold. Likewise if the US Government really wanted to push it and threaten things like unincorporating the company, Microsoft would fold as well.
(Score: 2) by DannyB on Wednesday January 03 2018, @09:53PM
Excellent point.
And how many other governments use Microsoft code?
Surely the US would never force Microsoft to insert an NSAKEY [wikipedia.org].
To transfer files: right-click on file, pick Copy. Unplug mouse, plug mouse into other computer. Right-click, paste.
(Score: 0) by Anonymous Coward on Wednesday January 03 2018, @05:16PM
It doesn't matter what the Supreme Court says, the real lesson here is that you can't have a public company host confidential data if you want to protect it from the government. That ranges from "I traffic in cocaine and fund terrorists and want to conceal it" to "I don't want a bored employee of the NSA to flip through the family digital photo albums." It's in Microsoft's financial interests to do what most customers would want: fight any attempt by any outside party, including any government, to access the data. But if they didn't host the data, the problem goes away.
So everything the open source / free software community can do to make it simpler to host your own content is critical to privacy going forward.
(Score: 3, Insightful) by NewNic on Wednesday January 03 2018, @06:38PM (2 children)
No, because this is going to be massively bad for US businesses. Many people in foreign countries with secure data will start insisting that their data is stored locally and entirely controlled by local companies. US companies will be shut out. The other result is that the NSA is going to have a harder time accessing that foreign data.
Since there are alternative ways to get the data, this is a huge mistake by the DOJ. It's going to be counterproductive in the extreme.
lib·er·tar·i·an·ism ˌlibərˈterēənizəm/ noun: Magical thinking that useful idiots mistake for serious political theory
(Score: 0) by Anonymous Coward on Wednesday January 03 2018, @11:41PM
yes, but they are dumb, lazy pigs that just want their job to be easier. they don't care about other agencies, legal precedent or the rights of the people.
(Score: 2) by dry on Thursday January 04 2018, @03:40AM
As a non-American, this sounds like a positive. The Americans have too much power and are a major threat to freedom. Shit, quite a few Americans don't even believe the Bill of Rights applies to non-citizens and American companies routinely infringe on peoples rights.
(Score: 2) by Lester on Wednesday January 03 2018, @07:20PM
Has Snowden's revelations had any backslash to USA companies? No.
People keeps using Gmail, Windows, Google, Amazon, Facebook.... and Governments keep using Windows and other services.
(Score: 2) by tangomargarine on Wednesday January 03 2018, @03:27PM (5 children)
Maybe if the government weren't involved in shady shit they could just come out and tell us why they need the data. "Just trust us" is very much not a sentiment that should hold any water for anyone anymore when dealing with these guys.
"Is that really true?" "I just spent the last hour telling you to think for yourself! Didn't you hear anything I said?"
(Score: 0) by Anonymous Coward on Wednesday January 03 2018, @05:36PM (4 children)
"Just trust us" doesn't apply here - they have a warrant issued by a judge. The judge (leg. branch instead of enf. branch of gov.) trusted the case enough to issue the warrant. Now, of course, is whether the courts believe that such a warrant is lawful.
(Score: 0) by Anonymous Coward on Wednesday January 03 2018, @06:18PM (1 child)
Enf. expands to enforcement, right?
What does leg. expand to?
Which branch is Congress?
(Score: 0) by Anonymous Coward on Wednesday January 03 2018, @09:32PM
Legislative. You abbreviate it leg because it ain't got any...
(Score: 2) by tangomargarine on Wednesday January 03 2018, @08:41PM
Either
A) the owner of the account is American, in which case fine, why not just say so?
B) the owner of the account isn't American, in which case why is the U.S. bothering them abroad?
1) the person has been charged with a crime, in which case fine, why not just say so?
2) the person hasn't been charged with a crime, in which case why is the U.S. bothering them in the first place?
I'm not saying we need the name of the person or even what they did. But when they won't even answer those basic questions, yes it very much is "just trust us."
"Is that really true?" "I just spent the last hour telling you to think for yourself! Didn't you hear anything I said?"
(Score: 0) by Anonymous Coward on Thursday January 04 2018, @11:39AM
The judge in question is not a part of any branch of the Irish government and as such has no more say than a Pakistani judge has in the USA.
I guarantee you that the EU court is following this case very closely to see how to treat cloud services run by US companies.