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By: Daniel Larson

A federal investigation into a drug trafficking operation has unexpectedly sparked a highly controversial debate over Internet privacy and the boundaries of search warrants. The stage was set when The U.S. Department of Justice (DoJ) obtained a warrant and demanded access to Microsoft’s email servers located outside of the U.S. in Dublin, Ireland. If Microsoft complied with the request, the U.S. government would ultimately be granted access to search hundreds of protected email accounts stored within servers located outside of U.S. jurisdiction. This unprecedented dispute has sent shockwaves throughout the tech industry, leaving uneasy feelings with email service providers, their consumers, and government relationships around the world.

In challenging the warrant, Microsoft argues that the emails are governed by Irish law and that the U.S. government must go through the Irish government in order to obtain any emails. Furthermore, Microsoft contends by issuing a warrant and demanding access, the U.S. is exercising authority beyond its jurisdiction. Joshua Rosenkranz, an attorney for Microsoft, explained, “[the U.S.] would go crazy if China did this to us”.

The DoJ, however, has argued that the U.S. government has the right to demand emails from servers located outside the U.S. if the email provider is headquartered in the U.S. U.S. attorney, Justin Anderson, stated, “the warrant doesn’t care where the records are,” making it clear that the DoJ has carefully crafted the issue to take aim at custody and control rather than ownership or location.

The case, now on appeal in the U.S. Court of Appeals for the Second Circuit, has already ventured through two rounds in the U.S. District court of New York with the government  successful in both. Nevertheless, Microsoft remains committed and has even noted that a case of this magnitude may have the legs to reach The Supreme Court. Tech companies in the U.S. and around the world are watching intensely with Apple, NPR, and the Government of Ireland taking action in filing amicus briefs in defense of Microsoft. “What is at stake is basically the future of what the Internet looks like,” said Arne Schönbohm, President of the Cyber Security Council of Germany.

A Microsoft loss would force tech companies to make a tough choice, either violate European laws by turning customer data over to the U.S. government, or violate U.S. law by refusing to do so. Moreover, European companies would be pressured to cut ties with U.S. partners in order to maintain the privacy of their networks.

Additionally, the rise of the Cloud makes this debate even more challenging and complex. Cloud service providers are now storing data all over the world and transferring information from one jurisdiction to another at unprecedented speed. Moreover, tech companies are unsettled at the idea of complying with government demands, especially in the aftermath of Edward Snowden’s controversial disclosure.

Congress has already attempted to offer a resolution with the Law Enforcement Access to Data Stored Abroad Act, a largely bipartisan bill. The bill grants law enforcement the authority to use warrants to obtain customer information stored abroad by U.S. companies, but only if a U.S. citizen is the subject of the warrant. If the records stored abroad are of a non-citizen, then law enforcement would have to obtain legal assistance from the foreign country involved.

The bill offers a clearer regulation, as opposed to the outdated Electronic Communications Privacy Act, and would therefore suppress the concerns of tech companies. The bill’s sponsor, Tom Marino (R-Pa), explained “[r]egardless of the outcome in this case, Congress is in the best position to craft a law that balances law enforcement needs, privacy concerns, and foreign sovereignty, not prosecutors or judges.”

Daniel Larson is Staff Member of the Journal of High Technology Law. He is currently a 2L at Suffolk Law. He received a B.A. in political science from Rhode Island College in 2012. In addition to being a law student, Dan is a website developer specializing in video production and photography.

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