Microsoft has just made public its court filings objecting to demands by the U.S. government that the company turn over email files that are located on servers outside the U.S.
Microsoft has declined to provide the emails saying that a search warrant isn’t valid outside the territory of the United States. In response, the U.S. Department of Justice claims that the warrant served on Microsoft isn’t really a warrant at all, but rather a “hybrid” of a warrant and a subpoena. In response, Verizon has filed a brief in support of Microsoft.
If all of that seems like slightly insane legal logic, there’s a reason. It is slightly insane and to demonstrate I’ll explain in more detail. Late in 2013, Microsoft was presented with a demand for information about one of its users of Outlook.com. The company provided the information that was available on U.S. servers, but balked at providing information on servers located overseas.
Microsoft’s objection went before a federal magistrate in New York who agreed with the government that Microsoft should provide the information and also comply with the government’s insistence that the subject of the investigation not be informed of the delivery of the data. Microsoft responded that to comply with the government’s demands would violate the U.S. Constitution in addition to a number of treaties and international agreements.
Part of the problem stems from the fact that the government is treating the data demand as a warrant, such as a search warrant, but under U.S. law a warrant can only be enforced in the United States. There’s also a means of gathering information with a subpoena, which could produce information from an overseas location, but a subpoena requires that the subject of the investigation be notified of the subpoena and have a chance to block the subpoena in court.
To get around this, the DoJ is claiming that the demand is a hybrid of both a subpoena and a warrant based on the legal authority conferred by the Electronic Communications Privacy Act of 1986. However, a close reading of the ECPA does doesn’t include any wording to support the existence of a hybrid demand, but instead refers to traditional warrants.
In its argument, the DoJ then claims that Congress really intended to mean a hybrid even if it didn’t say so. A check of the Congressional Record does not reveal any discussion or definition of a hybrid warrant-subpoena.
Currently, email storage is covered by several different laws and depending on several factors may be subject to either a warrant or a subpoena. The Electronic Privacy Information Center has a chart that illustrates this. Nowhere on the chart is there a provision for some sort of hybrid warrant.
Microsoft Wages Court Fight to Prevent U.S. Search of Overseas Data
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.