Microsoft case: DoJ says it can demand every email from any US-based provider

The United States government has the right to demand the emails of anyone in the world from any email provider headquartered within US borders, Department of Justice (DoJ) lawyers told a federal appeals court on Wednesday.

The case being heard in the second circuit court of appeals is between the US and Microsoft and concerns a search warrant that the government argues should compel Microsoft to retrieve emails held on a Hotmail server in Ireland.

Microsoft contends that the DoJ has exceeded its authority with potentially dangerous consequences. Organizations including Apple, the government of Ireland, Fox News, NPR and the Guardian have filed amicus briefs with the court, arguing the case could set a precedent for governments around the world to seize information held in the cloud. Judges have ruled against the tech company twice.

Counsel for Microsoft contends that the US search warrant should not have been used to compel it to hand over emails stored in Ireland. “This is an execution of law enforcement seizure on their land,” Joshua Rosenkranz, counsel for Microsoft, told the court. “We would go crazy if China did this to us.”

The DoJ contends that emails should be treated as the business records of the company hosting them, by which definition only a search warrant would be needed in order to compel the provision of access to them no matter where they are stored. Microsoft argues the emails are the customers’ personal documents and a US warrant does not carry the authority needed to compel the company to hand it over.

“This notion of the government’s that private emails are Microsoft’s business records is very scary,” Rosenkranz told the court.

The three-judge panel hearing the appeal consists of judges Victor Bolden, Susan Carney and Gerard Lynch, the last of whom successfully prosecuted commodities oil magnate Marc Rich in the late 1980s. Rich counted among his clients embargoed Iran, apartheid-era South Africa and Chile under Pinochet.

Lynch’s case against Rich hinged on subpoenaed documents from Swiss companies, a fact both he and assistant US attorney Justin Anderson were quick to point out. When Rosenkranz said the warrant constituted a violation of national sovereignty, Lynch said: “That’s exactly what the Swiss said we were doing in Marc Rich. I stood there and argued it to this court.

“We don’t do foreign relations,” Lynch said. “If Congress passes a law and the executive wields it like a blunderbuss in such a way as to cause international tensions, that’s for them to worry about.”

But Lynch also expressed reservations about the government’s contention that this was a particularly powerful search warrant. “I have a lot of experience with search warrants,” said Lynch. “I’ve signed a few of them, and they don’t require you to disclose things.”

Warrants give law enforcement the right to enter and search premises; subpoenas compel their targets to disclose information. “It’s a subpoena dressed up as a warrant that also has the powers of a subpoena?” Bolden asked Anderson, who told him it was indeed.

Anderson said that a warrant required a very high legal standard, and said that the case wasn’t about who ultimately had the intellectual property rights to the emails. “It’s not about ownership, it’s about custody and control,” he told the judges.

He further said that the US couldn’t reasonably be expected to know the nationality of someone committing a crime. “It is highly unlikely at the time the government is issuing a warrant in a narcotics case that it knows the nationality of the persons involved,” he said.

Judge Carney grilled the government counsel on his interpretation of the statute in play, the Stored Communications Act of 1986, which Microsoft contends could not possibly have foreseen international cloud computing.

“The warrant doesn’t care where these records are,” Anderson told Carney.

She asked: “And what indication is there in the statute that Congress didn’t care, either?”

Lynch seemed fascinated that there were so few American regulations on what Microsoft could choose to do with its clients’ emails. He asked whether the company could take everyone’s emails “to some briefcase-bank country that has no regulations and disclose them to the National Enquirer” and Rosenkranz acknowledged that legally it could. (“Our business model would evaporate,” he said in answer to a similar question earlier in the hearing.)

“Both sides are in agreement that there are not as many protections on electronic communications as electronic communicators might like because the providers can do whatever they want with those communications, so long as they do it abroad,” Lynch concluded.

At the end of the hearing, Lynch echoed Rosenkranz’s call for legislation from Congress to clarify the decades-old law – Microsoft has called for Congress to pass the Law Enforcement Access to Data Stored Abroad (Leads) Act, though he observed to Rosenkranz that the legislature isn’t known for its speed. “It would be helpful if Congress would engage in that kind of nuanced interpretation,” he said, “and we should all be holding our breaths for when they do.”

A ruling in the case could come as early as October or as late as February.