What limits?

From Computerworld:

In a decision that could have broad privacy implications, a federal court in New York Thursday ordered Microsoft to comply with a U.S. government demand for a customer’s emails stored on a company server in Dublin, Ireland. The decision upholds an earlier magistrate court decision.

In an oral ruling, District Court Judge Loretta Preska rejected Microsoft’s argument that a U.S search warrant does not extend beyond the country’s borders.

“The production of that information is not an intrusion on the foreign sovereign,” Courthouse News reported Judge Preska as saying. “It is incidental at best,” Preska noted, adding that the magistrate court order was not an extra territorial application of U.S. law.

I liked this response in the comments:

So does this ruling mean that the Syrian government, for example, could force U.S. companies to turn over the email records of human rights activists in the United States, even if their messages are stored on servers located in the U.S.?

What about the Chinese government forcing Google to turn over the records of U.S. companies, even if these records are located on servers within the United States?

This ruling, if allowed to stand, opens a Pandora’s box of allowing foreign governments access to U.S. business’ and individual’s records, even if this data is stored in the U.S. After all, what is good for the goose is good for the gander.

Another thing I wonder about is what about the case of a company that doesn’t have a physical presence in the U.S. Suppose it was a U.K. company with a Hotmail type service and a U.S. customer. Would the U.S. government claim it had jurisdiction to force the U.K. company to turn over the email? The U.S. government has “twisted arms” such that Switzerland and other countries with strong banking privacy polices have submitted to U.S. demands for the banking records of U.S. citizens. I suspect the U.S. will or is doing similar things in the case of email.

Our government is way out of control.

I’m glad Microsoft is the one fighting this rather than some small business that can’t afford to spend millions on lawyers to fight it.

9 thoughts on “What limits?

  1. I would estimate that the majority of the readers here feel the Federal Government is far too aggressive in the collection of personal information and has continually lowered the bar for “justified” access to such info. Now, two Federal Courts have displayed an incredibly myopic view towards the access of information and as Joe points out how we’ll respond to other countries requests.

    Unless… They already have.

    Jeff B.

  2. I keep wondering why nobody has advanced this argument: The Fourth Amendment protects persons, papers, AND EFFECTS. If data on a commercial server isn’t an effect, I have no idea what’s meant. (You know I’m right.) The point is that the data does not belong to the entities holding it. It belongs to the people it is ABOUT. (If you don’t own the information ABOUT you, what makes you a person?) It is therefore of restricted access to those with express permission to read it, OR subject to the requirement of a warrant, issued by a judge, on presentation of an affidavit of probable cause, meeting the requirements of the Amendment.

  3. And, no, I’m sorry. That this protocol regimen places stringent burdens on officers of the law is exactly the point. A high bar, a strict burden of proof, and an near-infinite degree of respect toward the rights of the individual are exactly the PURPOSE of a consensual government. Anything less is a perversion.

    M

  4. Microsoft has a huge amount at stake here, as do Amazon and Oracle. They are all building significant cloud infrastructures.

    If this ruling stands then any overseas expansion will be shut down by privacy concerns and the huge emerging market will go to some other company. Who, I don’t know but I do know that this ruling opens up a huge market space.

    People wonder why US business is fleeing overseas. If it were me I’d start a new company overseas, sell or license the cloud technology and tell the government to stuff it. I’d sell the overseas assets to the new start-up and call the whole thing a re-organization to focus the old company on its core business.

    There are literally tens of billions of money in overseas accounts held by US companies that they would invest here if we just treated them as if we wanted them rather than lepers.

    Earl

  5. I know that in the past courts got around the inability to reach documents kept elsewhere by ordering the person with possession, custody or control to turn the documents over to the court, or to the other party, and if they did not, to hold the person in contempt of court.

    Non response to document discovery by a party usually ultimately resulted in an issue sanction, to decide the issue against the withholding party. Want to prove otherwise? Fork over the documents. This is a kind of a shortcut, and it does usurp the sovereignty of the place the documents are stored.

    There must be a treaty involved. I can’t imagine a US court allowing this against a US location were two parties in a foreign court to decide to order a subpoena to be honored without going through whatever procedure and foreign court hearings are required by the treaty.

  6. It’s quite obvious that the judge in this case is either totally clueless and slept her way into her seat on the bench or is a flaming liberal moron who believes that the US government can do what it wants, when it wants to, to anyone it likes anywhere in the world with zero interference and zero accountability. Either way this twatwaffle needs to be removed from the bench by whatever means necessary.

    • I would prefer an impeachment removal rather than a prejudicial removal after the country goes to hell in a handbasket, we do need waitresses and grocery clerks. I’ve found that many judges don’t have a clue about the hearsay rule and its many exclusions and exceptions. And mediators don’t even know the concept. It is the lawyer’s job to educate the judge in such a way that he or she is not offended and rules in accordance with the law, which usually means not getting reversed on appeal.

      • “It’s the lawyers job to educate the judge”…..that right there supports the assertion that the system is beyond repair. Judges ARE lawyers…supposedly the best and brightest of the breed. Of course what they REALLY are has nothing to do with best or brightest but with the ability to fundraise, gladhand, brown nose and fool voters. Impeaching a judge is damn near impossible…..from time to time a judge who acquired office via the ballot box gets recalled but that is rare. For an appointed judge to be removed from office takes an “act of congress”…..sometimes quite literally. Not going to happen. Realistically the ONLY judges who get removed from office are federal judges who get fired by an incoming administration so that the seat can be filled by a crony.
        Not exactly a process to give society confidence in the system. Nope….the system is broken beyond repair. The sooner we flush it clean and start over the better as it WON’T fix itself and it WON’T allow itself to be fixed by peaceable means because too many people are tied to the current system as a means to wealth and power.

        • True, judges were lawyers first, the problem is they are the two occupations most reviled in America, lawyers and politicians. A politically connected lawyer becomes a judge. Judges have carefully tuned political antennae and are adept at crafting their opinions to match public opinion.

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