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.
Microsoft Gathers Powerful ‘Friends’ in Appeal of Email Search Warrant
Earlier this year the U.S. Supreme Court decided unanimously in Riley v. California that police need a warrant to search the contents of a person’s cell phone when they’re stopped. Previously, police departments in California had operated under a practice that when a person was arrested, anything they had in their possession could be searched. The Court tossed out that idea despite the fact that the state of California raised the terrorist bugaboo.
The Court was not persuaded by the government’s hypothetical argument that a search of a smartphone that was incidental to a traffic stop might prevent a terrorist attack.
The BSA brief also mentions a point already gaining much currency in Europe which compares the U.S. action to one involving documents in a safe deposit box. That point is that if everything else were the same except that the document was a piece of paper stored in a safe deposit box in a U.S. bank located in Europe, then there would be no question that the U.S. has no right to demand the document directly.
Instead, the requirement is to use the existing mutual assistance treaties to get such paper documents, just as they are the prescribed way to request digital information now.
So why is the DoJ bound and determined to make Microsoft turn over the emails in question, rather than simply following the requirements of the existing law? The DoJ complains that they’re too cumbersome, but being cumbersome isn’t an argument that’s swayed the Court in the past.
Why has the DoJ picked this legal fight with Microsoft? It would appear that in reality this isn’t about the email that belongs to a non-citizen of the U.S., but rather it’s about making a point. This is the DoJ’s version of that old advertising idea of throwing everything against a wall and seeing what sticks.
The government was perhaps taking a chance that rather than fighting an expensive, cumbersome and drawn out court battle, Microsoft would simply acquiesce to the DoJ’s will, which would establish a new legal precedent. Unfortunately for the DoJ, Microsoft didn’t roll over.
Instead, the software giant decided to use its significant resources to fight for an important legal principal—that it wouldn’t collaborate with the government by agreeing to violate existing U.S. and International law in the interest of expediency. The government, clearly believing that expediency justifies anything, no matter how legally egregious, likely didn’t expect Microsoft’s tenacity in fighting the case or the powerful friends it would marshal in the fight.