Microsoft wins U.S. appeal over warrant for emails held abroad

What made the original search warrant novel was the fact that it demanded data on an email account that Microsoft had stored in a datacenter located in Ireland.

Other major firms – including Amazon.com Inc., Verizon Communications Inc., and Cisco Systems Inc.-as well as lobbying groups such as the U.S. Chamber of Commerce and the Software Alliance, filed legal briefs supporting Microsoft.

Law enforcement officials-and the lower-level NY judge who originally ruled against Microsoft in its contempt case-argued that it’s simply too easy for criminals to hide their data overseas, and that MLATs are too slow, sometimes taking longer than a year to produce results.

The judgement will please privacy campaigners anxious about the reach of the USA authorities in the wake of the Snowden revelations, and also United States cloud providers concerned about what a loss by Microsoft would mean for their businesses.

A bipartisan bill was introduced in the U.S. Senate in May to clarify when and where law enforcement may access electronic communications of U.S. citizens.

The 3-0 decision by a panel of the 2nd U.S. Circuit Court of Appeals in NY was a victory for privacy advocates, as well as for technology companies hoping to offer cloud computing and other services to customers around the world. The judge’s decision states that under the Stored Communications Act, a search warrant sent to Microsoft can’t be applied internationally.

The government said the warrant entitled it to the material no matter where it was stored.

“It reinforces appropriate safeguards on the United States government, and focuses law enforcement on the appropriate use of accepted global agreements”, the company said.

The US Department of Justice had wanted to access a server in Ireland, as part of an investigation into a drugs case. It is obtained like a warrant, with a judge finding probable cause that the records requested would provide evidence of a crime, but it is executed like a subpoena, since it is served directly on the company and does not involve federal agents seizing and searching company servers.

Francis also said the “search” would take place only when the emails were opened and read, and that would be in the U.S. Its aim was to protect user privacy and the law didn’t envision the application of warrant provisions overseas, the appeals court said.

This is the second time Microsoft has appealed a decision against it in the case. That decision overturns a NY court’s ruling and sets a new precedent that limits American prosecutors’ ability to pull foreign communications data out of data centers beyond USA borders-even when the company itself is headquartered in the US. In one court submission, 29 major USA and foreign news and trade organizations said journalists and publishers worldwide rely on email and cloud-storage services provided by Microsoft and others to gather, store and review documents protected by the First Amendment.