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Microsoft: Feds Are 'Rewriting' the Law To Obtain Emails Overseas

Posted by Soulskill on from the get-out-of-my-inbox dept.

An anonymous reader writes: The Electronic Communications Privacy Act was written in 1986. It's incredibly outdated, yet it still governs many internet-related rights for U.S. citizens. Microsoft has now challenged Congress to update the legislation for how online communications work in 2015. The company is currently embroiled in a legal battle with the government over a court order to release emails stored in a foreign country to U.S. authorities. In a new legal brief (PDF), Microsoft says, "For an argument that purports to rest on the 'explicit text of the statute,' the Government rewrites an awful lot of it. Congress never intended to reach, nor even anticipated, private communications stored in a foreign country when it enacted [the ECPA]." In an accompanying blog post, Microsoft general counsel Brad Smith wrote, "Until U.S. law is rewritten, we believe that the court in our case should honor well-established precedents that limit the government's reach from extending beyond U.S. borders. ... To the contrary, it is clear Congress's intent was to ensure that your digital information is afforded the same legal protections as your physical documents and correspondence, a principle we at Microsoft believe should be preserved."

19 of 100 comments (clear)

  1. The inversion is complete. by idontgno · · Score: 3, Interesting

    Once upon a time, we expected our intelligence agencies to spy overseas but leave our local privacy alone.

    Now, spy agencies tap every domestic communications channel, but apparently spying overseas is bad.

    --
    Welcome to the Panopticon. Used to be a prison, now it's your home.
    1. Re:The inversion is complete. by DarkOx · · Score: 4, Insightful

      This isn't about spying its about compliance with records requests and privacy laws. EU has all kinds of (frankly downright crazy) privacy laws around email. That make it difficult to hand records to anything third party (that isn't an EU or member nation organ) and still be in compliance with the letter of the law; the US government is arguing that our courts etc have the power to subpena records on overseas servers.

      This puts companies like Microsoft between a rock an hard place, they essentially can't follow both sets of rules if US jurisdictional rules are not limited in scope to well, the US.

      I am not sure what the right answer is here, but it is a problem.

      --
      Repeal the 17th Amendment TODAY! Also Please Read http://www.gnu.org/philosophy/right-to-read.html
    2. Re:The inversion is complete. by Anonymous Coward · · Score: 5, Interesting

      The right answer would be to move all corporate operations outside of the US, as they no longer have to comply with both US and EU laws.

      Really, a company this large threatening to actually up & move would make the US fold so fast it would be comical.
      Wow, can't believe I'm actually rooting for MS here. How times have changed.

    3. Re:The inversion is complete. by IamTheRealMike · · Score: 3, Insightful

      This isn't about spying its about compliance with records requests and privacy laws.

      Two sides of the same coin, isn't it? The government wants data about foreigners, from a foreign place. They want, in short, to spy. Their chosen method of attack is to pressure people in the USA who happen to have access to that data, as opposed to e.g. placing a mole inside a foreign organisation, but the tactic used does not change the goal of the mission.

      EU has all kinds of (frankly downright crazy) privacy laws around email

      EU privacy regulators don't have a great reputation I agree, but perhaps once the most productive parts of America have been ruled for decades by a totalitarian communist state that has informers in every street, you might not see the rules as all that crazy.

    4. Re:The inversion is complete. by DarkOx · · Score: 2

      Two sides of the same coin, isn't it?

      No its not. A records request in accordance with some kind of due process that is public information and established before the event, is decidedly not spying.

      You are welcome to consider such a process bad law, and objectionable for any number of reasons but its a very different animal. At least someone is accountable for it, whether its a judge who signed a warrant and legislator who signed the law authorizing record sharing with $AGENCY. There is a (theoretically) functional political process by which you can attack the problem.

      On the other hand spying is done in secret, so nobody is effectively accountable. You never learn that it happened in many cases so you can never seek redress. The politician and legal process for dealing with it when revelations do come out are entirely broken, look at the legal standing issues around the phone metadata law suits ,etc.

      Domestic spying is IMHO way way worse, in that it represents and entirely extra-legal undemocratic application of government power, without due process and frequently in violation of other civil rights. Government fundamentally can't be by the people and for the people when its secret from the people. All those who support these programs are immediately wrong for doing so, be they are contrary to the fundamental mission of our government set fourth in the Constitution and its Bill of Rights. There can be no justification.

      --
      Repeal the 17th Amendment TODAY! Also Please Read http://www.gnu.org/philosophy/right-to-read.html
    5. Re:The inversion is complete. by Kjella · · Score: 2

      Two sides of the same coin, isn't it? The government wants data about foreigners, from a foreign place. They want, in short, to spy. Their chosen method of attack is to pressure people in the USA who happen to have access to that data, as opposed to e.g. placing a mole inside a foreign organisation, but the tactic used does not change the goal of the mission.

      Replace USA and Ireland with China and USA respectively and ask yourself if you think it's okay for the Chinese government to subpoena a Chinese company to provide data from a US subsidiary about US citizens, stored in the US. My guess is that most Americans would strongly object to their data being handed over to foreign governments that way, particularly without the US legal system getting a say. In particular, to a court not bound by the 4th amendment or any other protection that data might have had under US law. So it's one rule for us, one rule for everybody else.

      It's like the US government hasn't backed down an inch since the Snowden revelations and is still in "all your data are belongs to us" mode. Then again people continue to use GMail, Hotmail, Yahoo, Facebook and all these other US services that'll jump when the US government yanks their chain so I guess people don't care enough. It's obviously to anyone that cares that any relation to the US is the touch of death when it comes to privacy.

      --
      Live today, because you never know what tomorrow brings
  2. Re:Pot vs. Kettle by Anonymous Coward · · Score: 5, Insightful

    It's funny when Google, Apple or Microsoft complain about privacy issues.

    Maybe that should tell you something about how overweening the US government has become...

  3. Re:No Microsoft by schwit1 · · Score: 5, Interesting

    Would the US tolerate a foreign company operating in the US doing what complies with its home country laws but that violates US laws? I doubt it.

  4. This should be no different to physical documents by jonwil · · Score: 3, Insightful

    The feds cant use a warrant obtained in the USA to require a US based company to hand over physical documents stored in a foreign company, why should they be able to do it for electronic documents?

    If the feds REALLY need this data so badly, why dont they just go to Ireland or wherever the data is being held and get a warrant from there?

  5. Re:No Microsoft by PPH · · Score: 5, Insightful

    You're a US based corporation, subject to US law,

    Are you certain? Isn't it possible that Microsoft Ireland is a separate corporate entity from Microsoft USA?

    --
    Have gnu, will travel.
  6. uhh.. by SuperDre · · Score: 3, Funny

    You can change your law no matter what, your laws don't extend beyond your own borders.. US laws are not valid in say United kingdom or sweden..

  7. Obama Hurts Another US Company... by richrz · · Score: 3, Interesting

    Film at 11. This will really hurt MS's credibility overseas, what little it has. It will drive people to move off Hotmail, Live, and God forbid their Microsoft Account (which is used to login to Windows machines now!!! Can you imagine if BUSH were doing this? I can't stand either Bush or Obama in this area so you partisan hacks know that up front. Only hope is Rand Paul or Ted Cruz at this point (unless you know of others?? I'm seriously open to anyone right now, please respond!). Gay marriage, universal healthcare, yadda yadda.. etc..all are trivial compared to this issue of humongous government that is treating us like subjects not like their bosses.

  8. Re:Pot vs. Kettle by Tailhook · · Score: 3, Insightful

    Indeed. ACA employer mandate causing politically inconvenient layoffs in election years? Punt that down the road. Three times. Yay! ACA Cadillac plan excise tax giving your union constituents heartburn? Punt that one to 2018. Yay! Immigration laws angering your constituents? Ignore/rewrite that stuff. Yay! Medicare Advantage cuts have the AARP up in arms? Pencil whip that one out of existence. Yay!

    NSA playing fast and loose with your papers and effects? (selective) OUTRAGE! (selective) OUTRAGE!

    A government powerful enough to deliver all the social justice you demand is powerful enough to exercise its own prerogatives.

    --
    Maw! Fire up the karma burner!
  9. Re: Pot vs. Kettle by flubby! · · Score: 2

    This is a new low for Slashdot...
    What happened to the nerds that were there 15 years ago ? Are they all dead ? How can we communicate with tech-unsavvy people who decided to hang here ?

  10. Re:Pot vs. Kettle by Opportunist · · Score: 4, Insightful

    Privacy? None of the companies care about privacy. But they care about losing business. And that's something that can happen very easily if the US can simply say "fork it over" when it comes to data stored in their data centers abroad.

    The insecurity is already bad enough for their business, and if your congresscritters don't act quickly and decide against it, US companies will be an absolute no-go for data storage for companies in Europe and even more so in the middle east. Knowing that the US government could at a whim decide that they want to have all your email traffic means that companies will decide against US companies when it comes to storing their data. Simply out of self interest.

    And in the current climate, being able to say that no US company gets a hold of your precious data is also good PR.

    --
    We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
  11. Re:No Microsoft by Opportunist · · Score: 3, Interesting

    And your branch is doing business in Ireland which means it's subject to Irish law, which says that if you hand over those documents you're breaking it.

    So, MS, you may decide now which law you wish to break.

    --
    We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
  12. don't trust anything from the USA by swell · · Score: 2

    Every American manufacturer and service provider is suspect because of these government demands. Digital equipment may have back doors for the convenience of government spies. Cloud services are probably being watched. Software may have embedded spyware.

    If you were a foreign company or government would you trust anything coming from the US? Even a US company or individual can't trust our own companies. Our government is making us non-competitive worldwide. (Open source products may be safer.)

    --
    ...omphaloskepsis often...
  13. Re: Pot vs. Kettle by weilawei · · Score: 2

    I stopped keeping a large digital music collection when I upgraded iTunes and it decided to nuke my entire library on installing the newest version. 80 GB of music, all perfectly tagged, all gone. That was back around 2007, whichever version that was.

    Needless to say, I was furious. I also no longer use iTunes.

  14. Target Canada by phorm · · Score: 5, Insightful

    So how is it then when "Target Canada" or other such companies go bankrupt, that "Target USA" isn't liable for all the debts they left behind?