Microsoft rallies the tech troops against the DoJ's data privacy grab

Stuart Lauchlan Profile picture for user slauchlan December 16, 2014
Microsoft continues to hold the line against the Department of Justice’s attempts to get access to data held in the cloud overseas.

For what will probably be the last time in 2014, but sadly not the last time overall, let’s return to the thorny topic of data privacy and the US government’s attempt to extend snooping powers to offshore locations.

The background to all this: the US Department of Justice is demanding that Microsoft should turn over a suspect’s digital documents stored on a server in Ireland.

As Microsoft has fought against this, it’s lost two court hearings to date, with a district court judge ruling in July that the company must turn over the emails. The firm has now appealed the district court ruling to the US Court of Appeals for the 2nd Circuit.

Last week it upped the stakes by filing a brief arguing there is “no way” the US government would allow other countries to seize documents on US-located servers, an argument that mirrors the wording in its appeal:

Imagine this scenario. Officers of the local Stadtpolizei investigating a suspected leak to the press descend on Deutsche Bank headquarters in Frankfurt, Germany. They serve a warrant to seize a bundle of private letters that a New York Times reporter is storing in a safe deposit box at a Deutsche Bank USA branch in Manhattan. The bank complies by ordering the New York branch manager to open the reporter's box with a master key, rummage through it, and fax the private letters to the Stadtpolizei.


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It backed that up on Monday this week by gathering a show of force together in New York with representatives of other tech firms taking a stand alongside it.

Ten groups filed "friend of the court" briefs in New York, composed of 28 technology and media companies, 35 leading computer scientists, and 23 trade associations and advocacy organizations.

Those putting their heads above the parapet include Apple, Amazon, eBay, Cisco, Accenture, Infor and Salesforce. Google remains conspicuously absent.

The argument

At the event, Microsoft’s chief legal counsel Brad Smith said:

Everybody wants to have their rights protected by their own law. Try telling an American that their rights are no longer going to be protected by the Constitution, they’re no longer going to be protected by US law; they’re going to be protected by Irish law or Chinese law or Brazilian law.

Seldom has a case below the Supreme Court attracted the breadth and depth of legal involvement we’re seeing today, This case involves not a narrow legal question, but a broad policy issue that is fundamental to the future of global technology.

We recognize that it is a conversation that is not about one side being right and the other side being wrong. It’s about safety and privacy. I think most of us would share the view that we want to live in a world that values both and finds a way to develop new solutions.

Andrew Pincus, a partner at law firm Mayer Brown and an advisor to the US Chamber of Commerce, backed up Smith’s argument, citing the example of a US bank having a branch in Ireland in which stored documents would be safe from US investigators:

The question is, should that change in technology automatically, without anyone thinking about it, effect a huge expansion of the US, government’s power at the expense of other nations?

Brad Smith

Pincus also raised the prospect of the wider impact on the US-dominated cloud computing industry:

If by putting [data] in the cloud, you lose control over them and the government just gets access whenever it wants, nobody's going to do that. Basically no one will use the cloud if companies think that they are going to lose control of their data.

While this is undoubtedly a clear risk, it’s a line of reasoning that might play into the DoJ’s hands by enabling it to suggest that Microsoft is being driven purely by financial concerns rather than taking a moral stance. As such Smith was quick to redirect the thrust back to wider issues:

Of course the entire tech sector understands that this is about this country’s ability to create technology that leads the world and has access to the foreign market. It is about economics. ... But ultimately it’s about trust. ... This case is about whether people will have the right to have their email protected by their own laws and their own governments and their own constitutions.

A ruling by the appeals court is likely months away.

My take

As we’ve said all along, this is a critically important battle that needs to be won by the tech industry. Kudos again to Microsoft for holding the line - and from a diginomica perspective, we’re cheered to see premier partners Salesforce and Infor standing alongside. We’ll return to this fight in 2015.


Disclosure: at time of writing, Infor and Salesforce are premier partners of diginomica.

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