Microsoft Made in U.S. to Cough Up Irish Data

MANHATTAN (CN) - In an expansion of the long arm of U.S. law that upset some privacy advocates, a federal magistrate ordered Microsoft to turn over data from servers in Dublin, Ireland.

U.S. Magistrate Judge James Francis issued a search warrant on Dec. 4 that required the tech giant to release four lengthy categories: a user's emails, associations, identifying information and contacts with the company's support-services personnel.

Microsoft provided the data contained on its U.S. servers and moved to quash the data requests for information held abroad.

On Friday, Francis called Microsoft's argument "simple, perhaps deceptively so."

"Federal courts are without authority to issue warrants for the search and seizure of property outside the territorial limits of the United States," the 27-page opinion states. "Therefore, Microsoft concludes, to the extent that the warrant here requires acquisition of information from Dublin, it is unauthorized and must be quashed."

Microsoft's deputy counsel David Howard said as much in a statement reacting to the decision. "The U.S. government doesn't have the power to search a home in another country, nor should it have the power to search the content of email stored overseas," Howard said.

Francis quoted "A User's Guide to the Stored Communications Act," by George Washington University Law professor Orin Kerr, in explaining "that the Fourth Amendment protections that apply in the physical world, and especially to one's home, might not apply to information communicated through the Internet."

Kerr's 2004 treatise states that an Internet user "does not have a physical 'home,' nor really any private space at all."

"Instead, a user typically has a network account consisting of a block of computer storage that is owned by a network service provider, such as America Online or Comcast," Kerr continues. "Although a user may think of that storage space as a 'virtual home,' in fact that 'home' is really just a block of ones and zeroes stored somewhere on somebody else's computer."

Lee Tien, a staff attorney for the digital-privacy group Electronic Frontier Foundation, said "the magistrate judge got it wrong" in interpreting the communications law.

"I mainly question the logic that the SCA warrant is somehow not a regular warrant such that existing case law on extraterritoriality and warrants could be discounted or ignored," Tien said in an email. "There's a reason why Congress is supposed to be clear about extraterritoriality - it raises foreign policy implications that are different from purely domestic activity."

Microsoft insists that bilateral treaties should guide this process to avoid diplomatic mishaps.

In rejecting that position, Francis again cited Kerr, who called this process "slow and laborious, as it requires the cooperation of two governments and one of those governments may not prioritize the case as highly as the other."

Tien noted, however, that this "process accounts for the other government's interests, too.

"I'm sure the U.S. government has asserted a U.S. interest in a foreign country's search warrant aimed at data stored in the United States," the lawyer said.

Kerr meanwhile called the opinion "fascinating" on his Washington Post blog but did not otherwise address the decision's merits. He instead linked to his new study "Fourth Amendment and the Global Internet."

The professor did not immediately respond to a request to comment.

Howard, the Microsoft deputy counsel, meanwhile signaled that a long appeals process might lie ahead.

"When we filed this challenge we knew the path would need to start with a magistrate judge, and that we'd eventually have the opportunity to bring the issue to a U.S. district court judge and probably to a federal court of appeals," he wrote.

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