Microsoft defiant over overseas data search warrants as US judge rules against herself

Profile picture for user slauchlan By Stuart Lauchlan August 31, 2014
Summary:
Microsoft is defiant by refusing to turn over customer emails stored in Ireland despite suffering a legal setback as US judge overturns her own ruling.

[sws_grey_box box_size="690"]SUMMARY - Microsoft is defiant by refusing to turn over customer emails stored in Ireland despite suffering a legal setback as US judge overturns her own ruling.[/sws_grey_box]

no

Despite suffering another legal setback in the US courts where the judiciary seems hellbent on damaging the overseas prospects of the US tech industry, Microsoft continues to be defiant by refusing to turn over customer emails stored in Ireland.

Back in April, US magistrate Judge James Francis ruled that cloud service providers have to hand over digital content to the US government even when that content is stored overseas.

The ruling was made after Microsoft took a stand against the issuing of a US search warrant  to gain access to information about a customer whose emails are hosted on a server in Ireland.

In July Chief Judge Loretta Preska of the US District Court in Manhattan decided that the physical location of emails in an Irish data center is not relevant to the case, as they fall under the control of Microsoft from the United States.

As such she upheld a magistrate judge's ruling on handing over the emails to the US authorities, but delayed enforcement of the government's search warrant so Microsoft could appeal.

But after prosecutors argued that her order was not a "final, appealable order" and because Microsoft had yet to be held in contempt of court, she changed her mind and decided that the order:

merely confirmed the government's temporary forbearing of its right to stay enforcement of the order it secured.

Microsoft has argued that customer emails deserve the same legal protections that US mail and the contents of telephone conversations enjoy.

In a twist that would appeal to Messrs Jarndyce and Jarndyce in Bleak House, Preska has now effectively come down against herself.

Essentially she’s decided that because she didn’t insist on a final enforcement of her own decision and allowed a stay of execution so that Microsoft could appeal, this now means that Microsoft can’t actually appeal against that decision as it hadn’t been finally made.

To its credit - and obviously with a lot of self-interest - Microsoft is standing firm for now:

Microsoft will not be turning over the email and plans to appeal. Everyone agrees this case can and will proceed to the appeals court. This is simply about finding the appropriate procedure for that to happen.

For her part, Preska seems to have no idea what the next step will be. She’s now ordered both Microsoft and federal prosecutors to advise her how to proceed by this Friday.

If Microsoft continues to defy the court, then Preska may end up finding it in contempt, which would ironically then allows Microsoft to mount a formal appeal.

Microsoft might also take the fight to Preska and ask the Second U.S. Circuit Court of Appeals to review her Friday rulingw tih a view to having it suspended pending review.

Other tech giants appear finally to be stepping up to the mark as well, with AT&T, Apple, Cisco Systems and Verizon Communications all submitting briefs supporting Microsoft's opposition to the overseas search warrant.

My take

Stand firm! The US tech industry cannot afford to lose this battle.