Microsoft Wages Court Fight to Prevent U.S. Search of Overseas Data

By Wayne Rash  |  Posted 2014-06-11 Print this article Print
Overseas data search

It's important to note that the government does have the means to get data stored in other countries, including in Ireland, which is where the emails in question are supposedly located. Doing so requires using what's called a mutual assistance treaty, in which nations agree to help each other in solving crimes that happen across international boundaries.

If the DoJ wished, it could approach Ireland through the use of a mutual assistance treaty. The problem is that going through these channels takes time and paperwork, two things the government would rather not deal with.

Instead of following the law, apparently the government would prefer to make up its own laws, including some sort of hybrid warrant that exists nowhere in the Constitution nor in the legislation that the government depends on.

Fortunately, there is good news. Both Microsoft and Verizon have enough money to afford good lawyers and it appears that a number of other companies are planning to join on Microsoft's side as well. A hearing on Microsoft's objections will be heard by federal judge Loretta Preska at the end of July. No matter which way judge Preska rules, you can assume that there will be appeals.

While it may seem odd to side with Microsoft considering how much everyone seems to complain about them, the fact is in this case Microsoft has a point. Despite the DoJ's overwhelming desire for speed and convenience, the fact is that the law requires that private information be kept free from government inspection without a proper court order. There are two types of court orders that are available to the government, one is a warrant and the other is a subpoena. There's no such thing as a hybrid.

This is a situation that the Framers of the Constitution failed to foresee. Who would have known in the late 18th century that such a thing as email would exist and that it would allow people to keep their papers and records free from government interference by storing them in another country? Oh, wait, people did that then too, didn't they? It wasn't email, but documents were routinely sent to other distant locations for safekeeping.

So apparently when the nation's founders wrote the Constitution, they obviously knew about such a practice and chose not to allow the government to pry into remotely stored files and documents without proper legal authority. That rule still exists and until legislation becomes law that changes things, it seems that the government is perpetrating a fiction upon the court in an effort to save itself some inconvenience.


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