A federal appeals court on Wednesday will consider if a United States search warrant can reach across the Atlantic and into the cloud. The case being argued before a three-judge panel pits American law enforcement against Microsoft and a broad alliance of tech industry heavyweights, civil society groups, and news media.
Armed with a search warrant, can the U.S. government seize a person's emails that are held abroad? That's the central question driving the case, which legal experts told BuzzFeed News carries far-reaching implications for fundamental privacy rights and the state of international commerce in a post-Snowden world.
The dilemma began two years ago, when Microsoft was served a warrant by federal prosecutors in New York to hand over the emails of a customer suspected of trafficking narcotics. The problem was, Microsoft was using a data center in Dublin, Ireland to handle that person's email. Because a search warrant only extends to the territory of the U.S., Microsoft refused to turn over the emails, a novel example of an older law colliding with the new realities of cloud computing and a global internet.
Two lower courts have rejected Microsoft's arguments, focusing not on the location of the data but on the control over it, and have sided with the government. The government painted Microsoft as an irresponsible corporate citizen overly concerned with its bottom line above its legal obligations and emphasized how the company's actions may impede law enforcement and national security. "The fact remains that there exists probable cause to believe that evidence of a violation of U.S. criminal law, affecting U.S. residents and implicating U.S. interests, is present in records under Microsoft's control," the government's brief states.
Microsoft, joined by Apple, Amazon, the Washington Post, and CNN, has argued that if the government were to succeed, the decision would ignite an international arms race of nation-state espionage and corporate protectionism. "If the Government prevails here, the United States will have no ground to complain when foreign agents—be they friend or foe—raid Microsoft offices in their jurisdictions and order them to download U.S. citizens' private emails from computers located in this country," Microsoft's brief states.
If the U.S. government is allowed to unilaterally obtain a person's email and data, regardless of the person's nationality or location, Microsoft argues, what's to stop other countries from reaching into the U.S. and grabbing the information of American citizens? (One example is the Chinese government grabbing data stored on Alibaba servers located in the U.S.) A similar line of thought applies to journalists, political dissidents, and minority groups who, Microsoft and its allies believe, would be put at higher risk of state surveillance and control. "Imagine that same power, that same authority in the hands of, say, China or Russia," Jennifer Daskal, a law professor at American University, told BuzzFeed News. "There's a real concern that if the government wins that you will see a kind of race to the bottom with nations asserting the power to compel providers to turn over data wherever it's located."
If the court sides with the government, tech companies say, foreign countries would further exclude American businesses from their markets, since U.S. companies would be seen as data-hoovering collaborators of American law enforcement. The giants of Silicon Valley have maintained that this dynamic has been in play since the disclosures of Edward Snowden.
The government, however, believes the perceived negative impacts felt by American businesses abroad are merely hypothetical. "Microsoft is not the first corporation (and is unlikely to be the last)," states the government's brief, "to paint a dismal picture of foreign companies boycotting American companies because of an order compelling the disclosure of records stored abroad."
In addition to these competing interests, the appeals court will also consider a new question that touches the 4th Amendment: When does a digital search by law enforcement occur? Is the search initiated when the information is accessed, in Ireland? Or does the search take place when law enforcement agents in the U.S. extract that information? Faiza Patel, Co-Director of the Liberty & National Security Program at the Brennan Center for Justice, told BuzzFeed News that the appeals court will likely probe this issue during oral arguments. If the search is understood to begin in Ireland, the government's case becomes weaker.
According to Patel, legal treaties (MLATs) exist between nations to handle these types of international cases. But, she said, the MLAT process has been criticized by the U.S. government for being cumbersome and time consuming, which is why the government is attempting to bypass it and use a search warrant. It's Microsoft's belief that rather than increase the reach of American law enforcement power, the international legal process should be streamlined and improved.
In February, members of Congress introduced a bipartisan bill that would bring clarity to cross-border electronic searches. Sponsors of the legislation believe an update to the law— allowing the government to search data located abroad only belonging to Americans, and improving the MLAT process — would better balance the needs of law enforcement officials and of citizens' right to privacy.
After arguments are heard on Wednesday, the appeals court decision is expected in the coming months.