By Melissa Dobstaff
Data privacy is a major concern among the public, especially when it comes to email. We know what happens when someone is hacked and his or her personal emails become the source of a public debate. Looking back to the Sony Hacking Scandal of 2014, we can easily see how leaked personal emails can cause an uproar. The expectation of data privacy is why tech giant Microsoft is currently engaged in a dispute against the US government concerning what has been referred to as their “sneak-and-peek” searches of customer emails. Now that other major tech leaders including Apple and Google have joined forces with Microsoft to contest this infringement upon their users’ fundamental rights, the US government is facing quite the battle.
A large part of this debate turns to the switch from physical storage to remote cloud storage. In the past our personal data was held on a physical server or hard drive, where the government would only gain access to conduct a search if they had a warrant to access that server or hard drive within your possession. Now more than ever people are turning to the use of cloud storage, which allows us to store, access, and share data over the internet while someone else incurs the costs of managing the storage infrastructure. This change has spurred the government in calling upon the Electronic Communications Privacy Act of 1986 to direct its searches towards the cloud where they can search personal data stored in the cloud without ever letting the account owner know that their data has been searched. With the use of cloud computing, the government no longer needs to access your own personal hard drive to see your emails, they can instead use the back door by going to the businesses that are storing your data.
Under the Fourth Amendment of the US Constitution, citizens of the United States have the right to know when the government searches or seizes their property, and Microsoft has filed this suit alleging that these “sneak-and-peek” searches are in direct violation of the Fourth Amendment. While the US government claims that Microsoft lacks the authority to sue on behalf of its customer’s fundamental rights, it begs the question of who is going to protect our rights if we don’t even know they are being violated. The Fourth Amendment gives us a right to know that government searches and seizures are being conducted, but if the government conducts these “sneak-and-peek” searches without our awareness, then they are effectively invalidating our fundamental right to such knowledge.
Microsoft is engaged in this dispute with the government to protect constitutional rights, but the company is also protecting its cloud computing business. Microsoft’s business could ultimately suffer if their customers were to start believing that the company was granting the government access to their personal information without their knowledge. With constant changes in technology Microsoft wants to maintain its foothold as a tech giant, and not have the government’s “sneak-and-peek” searches hinder its success. A loss by Microsoft in this suit not only means that the Microsoft’s business itself might suffer, but it also means that we stand to endure privacy violations, and a constant fear of wondering whether or not our personal data has been viewed without our knowledge.
When we look to the constitutional issues involved in this lawsuit, we should stop to consider that the law under which the government is justifying its actions just might not be up-to-date. The Electronic Communications Privacy Act was passed in 1986, and over the past thirty-years since it was put into effect, technology has completely changed the way we live our lives. With all of these changes it makes sense that we might need to restructure an Electronic Communications Privacy Act, that just maybe it hasn’t quite kept up with the use of cloud computing. If cloud computing is part of our future then its likely we need to adapt the Electronic Communications Privacy Act so that it can no longer be used to justify violating our Fourth Amendment Rights.
Student Bio: Melissa Dobstaff is a Staff Member of the Journal of High Technology. She is currently a 2L at Suffolk University Law School. She holds a B.S. in International Business Management with a minor is Spanish from Youngstown State University and a Post Baccalaureate Certificate in Paralegal Studies from Kent State University. Melissa is the Vice President of the Business Law Association for the 2016-17 academic year.
Link: http://www.iol.co.za/business/international/email-searches-apple-and-google-back-microsoft-2064512
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.
