In 'Hugely
Important Case,' Federal Appeals Court Just Ruled in Favor of Privacy
In what is being heralded as a win for privacy, a federal
appeals court on Thursday ruled that Microsoft does not have to hand over to
the U.S. government customer data held in another country.
According to Wired's
senior writer Andy Greenberg, the ruling (pdf)
by the 2nd U.S. Circuit Court of Appeals in Manhattan "just sent the
American Justice Department a clear message about its ability to reach beyond
U.S. borders to collect data with a search warrant: Keep your hands to
yourself."
In its own statement welcoming
the ruling, Microsoft calls it an "important decision for people
everywhere."
"The decision is important for three reasons: it ensures
that people's privacy rights are protected by the laws of their own countries;
it helps ensure that the legal protections of the physical world apply in the
digital domain; and it paves the way for better solutions to address both
privacy and law enforcement needs," the statement adds.
TechDirt's Mike Masnick, meanwhile, writes that
it "is a hugely important case concerning the privacy and security of our
data."
Reuters summarizes the
case thusly: "Microsoft had been challenging a warrant seeking emails
stored on a server in Dublin, Ireland, in a narcotics case."
The Center for Democracy & Technology (CDT), which had filed
an amicus brief in support of Microsoft in the case, has
a backgrounder which
explains the details more fully. It states, in part:
The
animating question in this case is whether a U.S. law enforcement agency can
compel a U.S. provider of communications service to disclose the content of
digital information the provider stores outside the U.S. The Stored
Communications Act (SCA), part of the Electronic Communications Privacy Act (ECPA)
of 1986, does not explicitly address the issue. The SCA authorizes the
Government to seek the contents of stored communications that are more than 180
days old, using a subpoena, a court order issued under 18 USC 2703(d), or a
warrant. The Government takes the position that a subpoena can also compel
disclosure of opened email no matter its age. However, Microsoft and most other
large providers apply U.S. v. Warshak, 631 F.3d 266 (6th Cir. 2010) on a
nationwide basis, and require warrants for all content. As a result, the stakes
about resolution of this case are quite high: does a U.S. provider put content
out of the reach of the U.S. government acting under the SCA by storing the
data abroad?
The judges sided with Microsoft, writing in their decision:
We
conclude that Congress did not intend the SCA's warrant provisions to apply
extraterritorially. The focus of those provisions is protection of a user's
privacy interests. Accordingly, the SCA does not authorize a U.S. court to
issue and enforce an SCA warrant against a United States‐based
service provider for the contents of a customer's electronic communications
stored on servers located outside the United States. The SCA warrant in this
case may not lawfully be used to compel Microsoft to produce to the government
the contents of a customer's e‐mail
account stored exclusively in Ireland. Because Microsoft has otherwise complied
with the Warrant, it has no remaining lawful obligation to produce materials to
the government.
"This ruling is a major affirmation that the rights we
enjoy in the physical world continue to apply in the digital world,"said Greg
Nojeim, director of CDT's Freedom, Security, and Technology Project. "By
declaring that a U.S. warrant cannot reach communications content stored
abroad, the court ruled strongly in favor of privacy and national rule of
law."
"Had the Department of Justice prevailed in this
case," Nojeim continued, "other countries would follow the U.S. lead
and start claiming access to data stored here in the U.S. based on their own
laws. It would have been like the Wild West and disaster for privacy."
The appeals court rule may not be the end of the road. CNNMoney reports that
"because of the significant implications about privacy and the limitations
put on American law enforcement, it's a case that could make its way to the
Supreme Court."
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