In Privacy Victory, Microsoft Wins Appeal Over Foreign Data Warrant (zdnet.com)

In what is being perceived as a major victory for privacy, Microsoft has won the reversal of a court order that required it to turn over to the United States government the contents of a customer's email account stored on an Irish server. ZDNet reports: The case centered on a uniquely-different warrant that was issued by U.S. prosectors in that it was for data stored in an email account stored by Microsoft overseas. Prosecutors said that because the data was hosted by a U.S.-based company, Microsoft must comply. But the judges concluded that Congress did not intend the law used in the case -- the Stored Communications Act -- to apply outside the US. The judges said was a "rational policy outcome" and should be "celebrated as a milestone in protecting privacy." The appeals court also reversed a charge of contempt, which allowed the company to trigger an appeal. The software giant has been battling U.S. prosecutors for two years over data held in its Dublin, Ireland datacenter, which it says cannot be accessed or retrieved by a US search warrant.

Comments

As little as I like Microsoft

[colinrichardday]

This is good news. We need to rein in the government.

Re:As little as I like Microsoft

[houghi]

This is reasonable good news. But it is not great news. A company won over government. However we, the people are left out of it.

And it is sad if we are happy when companies win over government. Because that means NOBODY is on our side.

Are the sheep happy that the wolf is killed by the lion? Sure, but in the end it means nothing to the sheep.

Do understand that neither of these parties represent the public (anymore).

Re:As little as I like Microsoft

[colinrichardday]

Is Microsoft supposed to represent the public?

Re:As little as I like Microsoft

[Impy the Impiuos Imp]

This is reasonable good news. But it is not great news. A company won over government. However we, the people are left out of it.

And it is sad if we are happy when companies win over government. Because that means NOBODY is on our side.

Are the sheep happy that the wolf is killed by the lion? Sure, but in the end it means nothing to the sheep.

Do understand that neither of these parties represent the public (anymore).

Go learn human history and witness the biggest problems of humanity are driven by the power of government. Even most corporate problems are due to companies seeking favorable treatment over competitors.

And probably you cheer at government "curing" the worst corporate problem -- monopoly -- by creating an even more powerful legal monopoly: government.

Re:As little as I like Microsoft

[stephanruby]

A company won over government.

No, it's more like a government won against another government. You can bet the Irish government and the EU weren't happy about this initial ruling. By complying with the initial ruling, Microsoft would have been forced to break the local data protection laws.

Microsoft had been placed in an untenable position. And you're right, the reversal is reasonable good news, but it's not great news. That initial ruling was totally insane to begin with. It should have been reversed within 24 hours, not within three years.

Re:As little as I like Microsoft

[DarkOx]

Personally I actually disagree that this is good news. Here is a case where the rule of law was utilized, a warrant was issued by a court on the public record for data. Microsoft is a US entity and should have to follow lawful orders from a US court. When courts can't subpoena that leaves law enforcement with little recourse other than warrant free uncountable hacking that violates our Fourth Amendment or letting having to let criminals walk free no matter how much legitimate probable cause to suspect their may be.

This sets up a situation where all you have to do is setup a foreign subsidiary and stash some severs overseas and the government can't touch you? Yes I realize its a little more nuanced than that, but I still think its a serious problem. This is likely to cause more the behavior we really should oppose as citizens not less.

Re:As little as I like Microsoft

[Gr8Apes]

Then again, many consider you wrong. Why can a government claim rights over assets under another government's sovereignty? What you're proposing is that gov A can tell a company based under gov B's control to supply it with information that is in direct violation of gov B's laws, merely because it has a presence somewhere under gov A's sovereignty. So, let's assume that there's a letter in Disney France's possession. So the US gov can force Disney HQ to produce said letter if France's laws forbid releasing such data without a *French* warrant?

It's obvious to me that gov A would have to go to gov B to get a valid warrant from gov B to get whatever they wanted, and yes, that makes for a painful process. Such is the rule of law. You don't just get what you want from anywhere you want because you passed some law in a banana republic.

Re:As little as I like Microsoft

[Anonymous Coward]

Yes - the rule of law was in play. And in this case, it was determined the original order was unlawful. The rule of law cuts both ways. Sometimes what the government tries to do is not lawful - just because its the government making a demand doesn't make the demand automatically lawful, and that is a good thing. However, it takes a lot of determination (and a lot of $$ for paying lawyers) to stand up to unlawful demands. In this case perhaps Microsoft's objectives were in line with those of the general public (at least some of the public), so the outcome can be seen as a public victory even if you are someone who disagrees with Microsoft's general objectives. Although it does open the door for a clever corporation using foreign countries to stash data they don't want to disclose, it also puts a line in the sand that makes it possible for a US corporation to refuse such an order from a foreign government, particularly a foreign government that might not have as much "rule of law" as the US does.

Re:As little as I like Microsoft

[colinrichardday]

Even if reigning were appropriate, wouldn't it be reigning over?

Re:As little as I like Microsoft

[DarkOx]

Disagree. Microsoft is a US entity it should have to follow US rules wherever it goes as long as it remains a US entity. Additionally it should have to follow the rules for whatever locality it happens to be in. Yes that may make it impossible to perform certain activities where the laws are totally incompatible.

Maybe Microsoft simply cannot operate a server in the EU under the current rules because of this conflict; that is probably the case and I don't care. If MS can't do it neither can anyone else and I am sure the politicians would 'fix' the problem in hurry and change the laws; the economic consequences of not doing so being probably pretty bad.

As a US citizen you are not free to violate federal law even while abroad! Admittedly there is a presumption against the extraterritorial applicability of United States law unless there is explicit language in the law to indicate it was the intent of Congress for the law to have applicability outside the US. So most laws don't apply but there are ones that certainly do like FCPA, the same should apply to court orders. A US court should be able to order a US citizen or entity to comply with a subpoena for evidence, if its turn over all your E-mails fine turn over all the E-mails in the USA, if its turn over all your E-mails in Ireland than you must turn over all your E-mail stored in Ireland.

Don't like move HQ to Ireland and surrender your citizenship, with all the various import restrictions, foreign reporting, loss SEC related consequences for your publicly held company that implies.

Re:As little as I like Microsoft

[sjames]

It is supposed to exist in the public interest.

Re:As little as I like Microsoft

[DarkOx]

Now you are trying to go in circles, my original post was disagreeing with the courts opinion.

Re:As little as I like Microsoft

[stephanruby]

Personally I actually disagree that this is good news. Here is a case where the rule of law was utilized, a warrant was issued by a court on the public record for data. Microsoft is a US entity and should have to follow lawful orders from a US court.

You're missing the point. Microsoft may be a US entity, but the Microsoft employees in Dublin are subject to Irish and European laws and they can be thrown in prison for violating the local data protection laws (or worse, they can be thrown in prison for the rest of their lives for doing espionnage for a foreign power).

This is not to say of all the business lost by Microsoft and other US companies outside of the US, because if such a warrant were to be implemented, no local government not already under the control of the US would allow its own citizens to use cloud services, email services, and a search engine under the ultimate control of the US government. When it comes down to it, if Europe really wanted to replace Microsoft and Google, it could.

And if the US really wanted that data, they should have asked the Irish government. That's what the actual rule of law dictates. There are treaties for such things. Trying to circumvent the sovereignty and the jurisdiction of a close ally and trade partner isn't cool. And unless the US is willing to backup Microsoft with US military troops on Irish soil, it was putting the local employees of Microsoft in a very precarious position.

Re:As little as I like Microsoft

[DarkOx]

So don't have the Irish employees do it. Microsoft has these neat protocols called RDP and SMB that would have easily allowed a US employee to do it.

The USA should have GLOBAL jurisdiction over its own citizens and corporate entities. If a law or court order is intended to apply to such an entity outside a US territory said order should apply!

This cuts both ways of course, a US entity wishing to do business/travel/etc ought to be prepared to comply with the laws of that place, if that can't do so perhaps because of US law than they have no business there.

Re:As little as I like Microsoft

[Zontar The Mindless]

The USA should have GLOBAL jurisdiction over its own citizens and corporate entities. ...

You have got to be fucking kidding me--or else you've not thought this out at all.

Re:As little as I like Microsoft

[stephanruby]

Disagree. Microsoft is a US entity it should have to follow US rules wherever it goes as long as it remains a US entity.

Yes, Microsoft is a US entity, but most likely Microsoft-Ireland is an Irish corporate entity for tax and liability reasons. Not to mention its employees, are going to be mostly Irish and/or Europeans.

And the nationality of the entity doesn't really matter here. If for instance, I was working in China, or in Saudi Arabia, for a US entity, I would still follow the local laws, before I would follow an illegal spying order from the United States.

My life and my genitals are just too precious to me.

Re:As little as I like Microsoft

[stephanruby]

Disagree. Microsoft is a US entity it should have to follow US rules wherever it goes as long as it remains a US entity.

Are you saying that if a Chinese company suddenly purchased your US-based employer tomorrow, that you would be willing to commit acts of espionage in the United States if your new Chinese employer required you to do so?

Re:As little as I like Microsoft

[DarkOx]

No I would quit, and than file suit against my former employer for asking me to do something illegal and forcing my resignation.

Sucks for the employer but its a hazard of doing business internationally unless you are extremely careful to minimize your international exposure and fully understand the foreign laws you have to comply with.

Re:As little as I like Microsoft

[DarkOx]

That is the point you are obligated to follow BOTH sets of laws when abroad. If you can't because the law is fundamentally incompatible than you can't go/conduct business abroad!

Re:As little as I like Microsoft

[jcochran]

Might want to reconsider your statement DarkOx, the real issue is that the US Government attempted to use a warrant where it should have used a subpoena. A warrant and a subpoena are two different legal documents with very different powers and limitations.

Warrant - Government is allowed to seize evidence without prior notice or opportunity to challenge, but the government is required to specify where the search is to occur and describe exactly what it is searching for. Additionally, the search location has to be within the United States.

Subpoena - Grants the government the power to require a person to collect items in their possession, control, or custody regardless of their location and bring said items to court. However, the one served with the subpoena may move in advance to quash the subpoena.

What the US Government was attempting with Microsoft was some sort of strange document that combined all the powers of both a warrant and a subpoena, but with none of the limitations of either.

Re:As little as I like Microsoft

[Applehu Akbar]

"This sets up a situation where all you have to do is setup a foreign subsidiary and stash some severs overseas and the government can't touch you?"

A foreign subsidiary should be under the laws of its host country, and no other.

Re:As little as I like Microsoft

[Applehu Akbar]

"As a US citizen you are not free to violate federal law even while abroad!"

You may not like the idea of sex tourists going to Thailand to party or Americans smoking pot in Amsterdam, not I for one do not appreciate printing more money to make the FBI the actual Word Police.

Re:As little as I like Microsoft

[Gr8Apes]

Microsoft is a US entity, Microsoft Ireland, is an Irish entity (hint - they're incorporated in Ireland). Now, Microsoft US may own the Irish entity, but that doesn't mean Microsoft Ireland is a US entity, nor subject to any US laws. Microsoft Ireland may allow Microsoft US access to data they hold, but I'll bet it is under the auspices of Irish law, as the EU privacy cases just recently decided make clear.

IANAL of any type.

Re:As little as I like Microsoft

[Gr8Apes]

You'd likely tell your employer you could not legally comply. Your resignation is offered if they wish.

And that's the point here, MS cannot force it's Irish subsidiary to give it data.

Re:As little as I like Microsoft

[stephanruby]

No I would quit, and than file suit against my former employer for asking me to do something illegal and forcing my resignation.

Hopefully, you would quit and go to the FBI right away.

After all, if you or many of your colleagues just quit without alerting the authorities immediately, there is nothing preventing the remaining clueless intern or janitor from allowing the foreign owner from coming onsite and making an offshore copy of the data.

Re:As little as I like Microsoft

[colinrichardday]

Even if its other activities are not in the public interest, is it in the public interest for Microsoft to have won this case?

Re:As little as I like Microsoft

[deniable]

No, to cut both ways: China should have GLOBAL jurisdiction over its own citizens and corporate entities. If a law or court order is intended to apply to such an entity outside a Chinese territory said order should apply! Obviously, I disagree.

Re:As little as I like Microsoft

[sjames]

Given current conditions, I'd say it is in the public interest. The DOJ needs to learn that it isn't omnipotent and does not have carte blanche.

Re:As little as I like Microsoft

[Jahta]

Personally I actually disagree that this is good news. Here is a case where the rule of law was utilized, a warrant was issued by a court on the public record for data. Microsoft is a US entity and should have to follow lawful orders from a US court. When courts can't subpoena that leaves law enforcement with little recourse other than warrant free uncountable hacking that violates our Fourth Amendment or letting having to let criminals walk free no matter how much legitimate probable cause to suspect their may be.

This sets up a situation where all you have to do is setup a foreign subsidiary and stash some severs overseas and the government can't touch you? Yes I realize its a little more nuanced than that, but I still think its a serious problem. This is likely to cause more the behavior we really should oppose as citizens not less.

Did you read TFA? This case was about _customers_ data not Microsoft's; _European customers_ data over which the US government and court system has _no_ jurisdiction. As other have pointed out, there are clearly defined methods for acquiring such data as part of a serious international crime investigation. In this case, the US tried to get the data via the back door and, quite rightly, failed.

What's more, European businesses who use cloud services have been watching this case very closely. If Microsoft had lost the case it would have killed the business of every US-based cloud service provider in Europe. European companies have a legal requirement to protect their customers data in line with EU laws; so using US-based cloud providers would effectively have become illegal in Europe had Microsoft lost.

Long road to victory

[qbast]

So I guess tomorrow the government will appeal the decision.

Time to ensure ownership is via local subsidiary

[Bruce66423]

This highlights the need to ensure that the server and so its data is held by a company incorporated under the law of the nation concerned. If that is so, local law trumps US law because the local board of directors will be in criminal court if they release the data to an unauthorised user, even if that is the US government.

Re:Time to ensure ownership is via local subsidiar

[zlives]

yup right until they sign a data sharing policy with US.... but that will never happen

Re:You know what this means, right?

[zugmeister]

Better than setting up a server at home and pretending nobody will hack it.

Not sure how I feel about this

[rsilvergun]

On the one hand it's nice to see privacy, on the other hand this is basically a get out of jail free card for any corporation that wants to hide it's illegal doings. I mean, if all I have to do to squash a warrant is host the data in a country that doesn't give a rat's behind... There actually _ are _ crimes I'd like prosecuted, like tax evasion. I pay mine after all.

Re:Not sure how I feel about this

[OfficeLackey]

Corporate documents like board minutes, tax docs or HR policies would be available or obtainable at any corporations registered headquarters. For Microsoft, they would be available in the US. But non-corporate data, your goods and services, can't be held to that same standard. If Google buys a car in Europe and it is driven there, the US can't mandate the car be shipped to America for inspection. The government has no control over an asset outside of it's borders. The problem is data isn't a physical asset like a widget or cog. (which we have established laws for) So certain branches of the government want to make special laws and rules for it so they can increase their reach/power.

Re:Not sure how I feel about this

[WolfgangVL]

There actually _ are _ crimes I'd like prosecuted, like tax evasion. I pay mine after all.

It's statements like these that got us where we are today.

Re:Not sure how I feel about this

[erapert]

1. You didn't pay more than $1.6 billion in taxes. I guarantee you didn't.
2. Corporations must make a profit or they cease to exist (and thus also your job ceases to exist). Taxes cut into the profits.
3. If you want a dog to come to you when you call you don't beat him when he shows up. You offer him a reason to come. It's the same with corporations: you can't tax the hell out of them and expect them to stick around. You'll get more tax revenue from having more corporations with bigger profits than you will by driving all the corporations away and taxing the life out of the few that are foolish or small enough to remain.
4. It's not tax evasion if they're abiding by the law.

Re:Not sure how I feel about this

[rsilvergun]

1. As a percentage of my income I paid more. Also, the taxes I pay have a much larger effect on my overall quality of life since my income is much, much smaller and I have much, much less leeway in my budget. Not that I mind paying for the public good, I'm a socialist. But I'm also an America, and unless you're rich (I'm not) you don't get much socialism in this country.

2. I'd like to live in a world where my entire quality of life doesn't depend on my job and how valuable I am to the ruling class.

3. You're analogy is nonsense. The dog will come to me because I am ladened with meat. America, with it's security, safety and wealth is that meat. Why in God's good name would I want a hungry, probably vicious dog to come and eat all my meat and kill me?

4. Why do we toss principles out the window when they're not useful to our ruling class? Are we really this dense? It's tax evasion if you're evading taxes that are meant to support the infrastructure that make these bastards rich. Letter of the law vs the spirit. You don't give up on the spirit of the law because it's _hard_.

On a side note, That has always been the difference between left wing socialists and right wing ideologue. The socialist doesn't just throw his hands up and leave it all up the the hand of fate. When in your life has any complex problem been better solved by leaving it to blind fucking chance?

Re:Not sure how I feel about this

[erapert]

Also, the taxes I pay have a much larger effect on my overall quality of life since my income is much, much smaller and I have much, much less leeway in my budget. Not that I mind paying for the public good, I'm a socialist.

You do mind how much money someone else pays relative to how much you pay but you say you don't mind paying? So really, you're just jealous that someone, somewhere, has more money than you do.

2. I'd like to live in a world where my entire quality of life doesn't depend on my job and how valuable I am to the ruling class.

So, socialist, you'd rather live in precisely such a world where a ruling class with a different label gets to decide things? Also, it's funny how you are angry that you must work for a living yet you demand that everyone else work to help support you especially corporations that don't happen to directly employ you. But I suppose the grass is always greener in someone else's yard, eh? That must mean they stole that green grass from you!

3. You're analogy is nonsense. The dog will come to me because I am ladened with meat. America, with it's security, safety and wealth is that meat. Why in God's good name would I want a hungry, probably vicious dog to come and eat all my meat and kill me?

First, read this.
Second, the analogy makes sense if you don't change it around and straw man it to try and attack it. The fact that you claimed "the dog will come to me because I am ladened (sic) with meat" just proves that you understood perfectly well what the analogy meant.

4. Why do we toss principles out the window when they're not useful to our ruling class? Are we really this dense?

So because someone else does something that you consider wrong makes it OK for you to do it too?

It's tax evasion if you're evading taxes that are meant to support the infrastructure that make these bastards rich.

I presume you're sending all of your spare money to the people of sub-Saharan Africa who're much worse off than you are? Careful, your jealousy is showing.

Letter of the law vs the spirit. You don't give up on the spirit of the law because it's _hard_.

That's interesting because you just said that we were dense for not doing as "those rich bastards" do-- i.e. disobeying the spirit of the law while following it to the letter.

On a side note, That has always been the difference between left wing socialists and right wing ideologue. The socialist doesn't just throw his hands up and leave it all up the the hand of fate. When in your life has any complex problem been better solved by leaving it to blind fucking chance?

So left wing socialists aren't ideologues but right wingers are? That's interesting considering the nature and tone of your arguments thus far-- calling certain people "rich bastards" for example.

Also, I'm not impressed by what a tough, intelligent, ubermensch you are that you leave nothing to chance and you totally take control of your life and everything. If you're so driven, so intelligent, and so in control of your life then why aren't you rich enough such that you don't have to worry about whether some corp that you have nothing to do with is paying what you consider its fair share of taxes?

Furthermore, I didn't advocate leaving anything to chance. That's a straw man that you put up so that you could attack it. Ideologue.

Why don't you leave this country and go live in one of the world's fabulous socialist countries? Wouldn't it make sense? Wouldn't you be happier there?

Re:You know what this means, right?

[Zontar The Mindless]

I had BlackBerry Enterprise Server and Microsoft Exchange Server running on a server in my bedroom for a few years. Nobody hacked into it.

That you ever found out about.

NSA

[manu0601]

Right, no US warrant grants access to data stored outside US. But does the NSA need a a warrant?