The U.S. Department of Justice is suing Microsoft over emails stored on servers located in Ireland. In what many lawyers would consider a ‘fishing expedition’ the DoJ has asked for (and then demanded) emails that may or may not be related to a drug case. Trouble is Microsoft has stored those emails on servers physically located in Ireland.
Microsoft has said that they would be happy to turn over the emails just as soon as the DoJ gets Ireland’s permission and data stored in equipment located on Irish soil is subject to Irish and European privacy laws – not U.S. laws. By international agreement if the DoJ wants something from another country they have to get permission from that country.
The DoJ contends that emails should be treated as the business records of the company hosting them, by which definition they would only need a search warrant to compel the company to provide access to them no matter where they are stored. Microsoft argues the emails are the customers’ personal documents and a U.S. warrant does not carry the authority needed to compel the company to hand it over.
Microsoft’s counsel, Joshua Rosenkranz, argued, “This is an execution of law enforcement seizure on their [Irish] land,” and he added, “We would go crazy if China did this to us.”
Judge Gerard Lynch (one of the three judges hearing the case) said that based on a statue in the Stored Communications Act of 1986 (which Microsoft contends could not possibly have foreseen international cloud computing) Microsoft was obligated to turn over the records no matter where they were stored.
And if that causes international problems?
In a statement typical of judges who don’t really want to take responsibility for what they are about to do, Judge Lynch said, “We [the courts] don’t do foreign relations. If Congress passes a law and the executive wields it like a blunderbuss in such a way as to cause international tensions, that’s for them to worry about.”
A decision on the case is expected in the next few months. We’ll see if the courts allow the DoJ to rewrite foreign policy regardless of what the international laws might state.
