The Washington Post, Amazon, Cisco and other prominent companies have filed a total of 10 "Friend of the Court" briefs supporting Microsoft's federal court appeal of a search warrant demanding the software company turn over emails stored in a server overseas.
On Dec. 15, BSA, the Software Alliance teamed with the National Association of Manufacturers, the U.S. Chamber of Commerce and the Center for Democracy and Technology to file a similar "amicus curiae" brief supporting Microsoft's legal argument in the case.
The amicus briefs were filed a week after Microsoft appealed federal court orders that it turn over to the Department of Justice the contents of emails stored on servers in Ireland, in a case that appears destined to go all the way to the U.S. Supreme Court.
Unlike some organizations that have simply rehashed old arguments, the BSA, et al brief raises new questions with references to established laws that forbid the government demands.
One, the Convention on Cybercrime, of which the U.S. is a signatory, lays out specific expedited steps that the U.S. government can take to get the information it needs quickly contrary to what the Justice Department is claiming in its reasoning for setting aside the existing warrant structure.
The BSA brief explains it this way: “Particularly relevant in this case is the fact that the Convention on Cybercrime specifically does not authorize the use of domestic warrants to obtain electronic data stored extraterritorially. Article 32, which addresses ‘[t]rans-border access to stored computer data,’ states that one nation may obtain such data without the consent of the other nation only if the data is publicly available or the requesting nation ‘obtains the lawful and voluntary consent of the person who has the lawful authority to disclose the data to the [requesting nation] through that computer system.’ Public availability and voluntary consent were the only circumstances ‘in which all agreed that unilateral action [by the requesting nation] is permissible.’"
What this means is that the U.S. government has already signed a treaty with other nations including Ireland that specifically does not allow exactly what the Department of Justice is trying to do. So far I’ve found it impossible to reconcile what DoJ is trying to do with its role of enforcing the law of the land. The only conclusion that seems possible at this point is that the U.S. government is trying to create new law through the use of judicial precedent in the absence of any legislation authorizing its actions.
So far it’s working. One federal circuit court has already agreed with the DoJ in this lawsuit. But the next question is whether it will continue to work. The BSA amicus brief provides some reason to believe it may not.