Microsoft resists giving overseas emails to US government

Douglas Crawford

Douglas Crawford

September 2, 2014

Given that Microsoft is deeply implicated in assisting the NSA with its blanket surveillance programs, and that its software is widely believed to be backdoored by the NSA (either with or without Microsoft’s knowledge and /or complicity), it is very easy to dismiss the tech giant’s public attempts to ‘stand up to the man’ with deep cynicism.

However, it also needs to be recognized that the loss of trust that Microsoft has suffered as a result of these scandals, both at home and internationally, has seriously damaged its brand and profit margins, something which it is desperate to regain.

It was with this in mind that Microsoft in January offered to allow non-US customers to store their data in servers located outside the US. However, given that US companies are legally required under the Patriot Act to hand over information on their servers to US intelligence agencies, even if that information resides on servers outside the US, we were fairly dubious about Microsoft’s ability to protect its customers’ data in this way.

The Foreign Intelligence Surveillance Act (FISA), similarly allows US agencies to access information stored in cloud databases located in the EU, but owned by US companies. All that US authorities need do is get a secret court to issue a secret surveillance order, which when presented to a US company they have no option (in theory) but to comply.

It should therefore not have come as much of a surprise to Microsoft when in April a US federal court judge ordered it to hand over a customer’s emails, even though these were stored in Ireland. The ruling by New York Judge James Francis supported a search warrant issued by US law enforcement officials, demanding information associated with an individual’s email account, including their name, credit card details and the contents of all messages.

Microsoft signaled its determination to resist the court order and quickly filed an objection to it, stating that,

The Government cannot seek and a court cannot issue a warrant allowing federal agents to break down the doors of Microsoft’s Dublin facility. Likewise, the Government cannot conscript Microsoft to do what it has no authority to do—i.e. execute a search warrant aboard … the Government takes the extraordinary position that by merely serving a warrant on any US-based email provider, it has the right to obtain the private emails of any subscriber, no matter where in the world the data may be located, and without the knowledge of or consent of the subscriber or relevant foreign government where the data is stored.

Chief of US District in Manhattan, Judge Loretta Preska, upheld the decision on July 31, but bowing down to pressure from leading US tech companies, temporarily suspended the order. However, last Friday she lifted the suspension after prosecutors convinced her that the order was not appealable, requiring that Microsoft hand over the emails immediately.

Microsoft has responded by, for the first time in US legal history, reiterating that it will not hand over the data until the case had wound its way through the appeals process,

Microsoft will not be turning over the email and plans to appeal.

As noted at the beginning of this article, it is easy to be very cynical about the Microsoft’s motives, and it is true that massive profit losses following a collapse in public confidence in the brand as a consequence of repeated allegation about is cooperation with the US government is undoubtedly the primary factor in its apparent change of heart.

However, if real reform is ever to be achieved, it will only be with the help of the political and economic might of America’s technological supergiant’s, so no matter how cynical the motive, Microsoft’s newfound backbone against overweening government power must surely be a positive step in the right direction (or at least so we hope)…

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