Microsoft Questions How Would The US React If A Foreign Government Attempted To Sidestep International Law

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In the ongoing case challenging a U.S. government search warrant for customer data stored in Ireland, Microsoft’s legal brief starts today in New York with the U.S. Second Circuit Court of Appeals. Previosuly, U.S. district court judge rejected the Microsoft’s argument that the warrant is illegal because it calls for the seizure of emails stored outside the United States. In the today’s filing, Microsoft cites a great example to question US government’s arguement.

The filing begins by imagining how the U.S. government might react if the shoe were on the other foot. For example, how would the Unites States react if a foreign government attempted to sidestep international law by demanding that a foreign company with offices in the United States produce the personal communications of an American journalist? As the brief hypothesizes, the reaction might go something like this:

The U.S. Secretary of State fumes: “We are outraged by the decision to bypass existing formal procedures that the European Union and the United States have agreed on for bilateral cooperation, and to embark instead on extraterritorial law enforcement activity on American soil in violation of international law and our own privacy laws.” Germany’s Foreign Minister responds: “We did not conduct an extraterritorial search – in fact we didn’t search anything at all. No German officer ever set foot in the United States. The Stadtpolizei merely ordered a German company to produce its own business records, which were in its own possession, custody, and control. The American reporter’s privacy interests were fully protected, because the Stadtpolizei secured a warrant from a neutral magistrate.”

Would that response satisfy the U.S. Government? Definitely No.

Because the documents held by the foreign company for safekeeping are private letters, not business records. And any attempt to take possession of those letters through a warrant – even one served on the company entrusted with those letters – would constitute a seizure by a foreign government of private information located in another country.

Read more about this case and Microsoft’s argument at Microsoft on the Issues blog.

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