Microsoft is set to argue in federal court Thursday why the government shouldn’t be able to access customer emails stored in overseas servers, and the company wants users to know why they oppose what could set a dangerous privacy precedent.
Microsoft general counsel Brad Smith explained in a Wall Street Journal op-ed Tuesday night why the company should not be forced to turn over emails stored in an offshore Dublin, Ireland server as part of a larger federal narcotics investigation, and how such a decision could open the door to future federal Fourth Amendment violations. (RELATED: Obama Administration Claims Right To Access U.S. Company Data Stored Overseas)
According to the government, companies have to hand over overseas records “when a valid subpoena, order, or warrant compels their production,” and that compelling Microsoft to do so is not a violation of the Fourth Amendment, as it doesn’t constitute a “physical search.”
Smith argues that the government is playing fast and loose with technical and legal definitions in order to justify obtaining the emails, and that by lumping cloud-stored emails under its definition “business records,” it can forgo the legal protections afforded to private property.
“Courts have long recognized the distinction between a company’s business records and an individual’s personal communications,” Smith wrote. “For example, the government can serve a subpoena on UPS to disclose business records that show where a customer shipped packages, but it must establish probable cause and get a warrant from a judge to look at what a customer put inside.”
In a brief filed with the court, Microsoft attorneys argued that Congress cannot issue warrants that reach outside of U.S. territory, regardless of where a company is based.
“Microsoft believes you own emails stored in the cloud, and that they have the same privacy protection as paper letters sent by mail. This means, in our view, that the U.S. government can obtain emails only subject to the full legal protections of the Constitution’s Fourth Amendment.”
Tech companies and service providers including Verizon, AT&T, Cisco and Apple have all sided with Microsoft in opinions submitted to the court, and a recent poll by Anzalone Liszt Grove Research shows that 83 percent of Americans agree.
“Verizon subsidiaries operate “cloud” storage services internationally, which allow business customers in other countries to store their data on servers located abroad,” Verizon wrote. “While Verizon complies with lawful government demands for information, the extraordinary reach of the demand here raises serious questions about its legitimacy.”
Smith said the court should look to the recent Supreme Court decision mandating that police obtain a warrant before searching a suspect’s cellphone, and in which Chief Justice John Roberts wrote that electronic communications like email include “‘[t]he sum of an individual’s private life,’ including ‘a record of all his communications,’ ‘a thousand photographs,’ and materials like ‘a prescription, a bank statement’ or ‘a video.'”
“The court concluded that an individual’s email account is an electronic ‘cache of sensitive personal information’ that is entitled to the highest level of Constitutional privacy protection,” Smith wrote.
The case will go to trial Thursday in the U.S. District Court for the Southern District of New York.