Requiring tech giant Microsoft to turn over the emails of a suspected drug trafficker to the feds would have “international ramifications,” the company's attorney Joshua Rosenkranz argued in federal appeals court in New York on Wednesday.
Microsoft’s fight over the emails with the U.S. Department of Justice dates back to 2013 when New York prosecutors served the company a warrant from the DOJ to disclose the emails of the alleged drug dealer they were investigating.
Microsoft did not comply with the DOJ’s warrant, claiming that the suspect’s emails were stored on a server in Dublin, Ireland, and therefore the contents of the communication were out of the U.S. government’s jurisdiction. While the suspect targeted in the case is yet to be identified or his or her location disclosed, Microsoft says it is their business practice to store a consumer’s data on a server located in close proximity to wherever users reside.
Microsoft has maintained that if the DOJ wants the emails, it must go through an Irish court which has jurisdiction over where the content is being stored. Microsoft twice lost that argument in lower courts, and it is now up to the second circuit court of appeals to decide their fate.
Rosenkranz warned the panel of three judges hearing the appeal on Wednesday that upholding a lower court's ruling in the government’s favor would create a “global free for all” where “any country with the jurisdiction over a provider can reach into our country and plunder our email.”
To date, the government has been successful in convincing the federal courts that it doesn’t matter that Microsoft stashes your emails abroad — what matters is that they have corporate control over them and are required as a U.S. company to disclose them when U.S. law enforcement serves a warrant in a criminal investigation.
The government reiterated this point Wednesday to the appeals court. U.S. Attorney Justin Anderson argued that this case has “nothing to do with storage” and is “all about disclosure.”
He contested Microsoft’s argument that surfacing a user’s emails stored in Ireland involved “extraterritorial” search and seizure by law enforcements by implying that Microsoft passing the suspect’s emails to law enforcement would happen in the United States. Anderson argued that “there’s no extraterritorial application at all,” adding that “the disclosure takes place here.”
Microsoft maintains in its appeal that a ruling in the government favor is dangerous and would create “way more than a possibility of international tension,” Rosenkranz said.
He asked the court to consider a case where a foreign government ordered its law enforcement to obtain materials stored in the U.S. “We would go crazy if China did it to us."
The Microsoft case comes at a critical time when many U.S. tech companies feel that consumer confidence in them has eroded post-Snowden. Microsoft is joined in the case by Apple, Amazon, and civil liberties organizations who agree that a ruling against the tech company could set off what Rosenkrantz called an “international firestorm” where governments can operate unilaterally in investigations involving electronic data.
The appeals court is expected to take months to make its decision. However, the ruling could have implications on whether the government decides to take Apple to court in a similar case involving guns and drugs.
Over the summer, the DOJ obtained a court order requesting that Apple hand over iMessage texts between suspects who used iPhones, The New York Times reported this week.
Apple told the feds that the messages were encrypted and therefore the company couldn't honor the warrant.
Michael Hayes is a senior reporter for BuzzFeed News and is based in New York.
Contact Mike Hayes at firstname.lastname@example.org.
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