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Microsoft’s Pals Flood 2nd Circ. in Warrant Case

MANHATTAN (CN) - Microsoft's diverse allies gathered roughly 5 miles apart from each other on Monday to overturn a ruling that lets the U.S. government access emails in a Dublin server without first getting the consent of the Irish government.

Inside the software giant's 40-story, glass skyscraper in Times Square, powerful trade associations and media groups described their campaign to reverse the ruling, which opponents contend threatens press freedom and the global economy.

Meanwhile, less than 6 miles downtown, legal briefs poured into the 2nd Circuit, arguing why the lower court got it wrong on the law of digital communications in the age of cloud computing.

With Microsoft's $45 billion domestic cloud business on the line, the BSA Software Alliance's chief executive Victoria Espinel said the lower court's decision will make many users think twice about trusting U.S. companies for their email service.

"This will make companies and individuals much more reluctant to use the cloud, for good reason, and that has real implications," Espinel said.

Chamber of Commerce lawyer Andrew Pincus noted that the effect could be much broader for American business.

"Certainly, tech companies are certainly on the front line, but this really is the whole economy," that brief states.

For Bruce Brown, the chief executive of the Reporters Committee for Freedom of the Press, the Microsoft appeal represents the "digital analogue of the Jim Risen case," referring to the New York Times reporter facing potential prison for protecting a source.

Many newsrooms will have their eyes turned to a courtroom in Alexandria, Va., on Tuesday, when federal prosecutors will decide whether they will call Risen to testify against CIA operative Jeffrey Sterling.

Risen has publicly stated that he would rather face contempt of court than name whether Sterling was his source for the chapter in his book "State of War" about the CIA's "Operation Merlin."

"That case has raised public awareness about issues surrounding reporter's privilege," the Reporters Committee's Brown said, referring to the Risen case. "This case is the digital analogue for that because we hope that it raises public awareness about issues surround the security of everyone's communications in the cloud."

The Reporters Committee intends to file its brief with dozens of major media outlets, including The Washington Post, National Public Radio, Fox News, The Guardian, The Daily Beast, McClatchy and CNN.

Former ABC News anchor Charlie Gibson, who moderated the conversation at Microsoft's press conference Monday, kicked off discussions with a quotation from the ruling that let prosecutors ignore geographical boundaries for cloud communications.

"The rise of an electronic medium that disregards geographical boundaries throws the law into disarray by creating entirely new phenomena that need to become the subject of clear legal rules but that cannot be governed, satisfactorily, by any current territorially based sovereign," the opinion begins.

Typically, prosecutors seeking records located in another country must follow processes outlined in so-called Mutual Legal Assistance Treaties (MLATs) between two nations.

The government contends that this process is burdensome, and offers no path for obtaining data held in countries that do not have trade treaties with the United States.

Upholding the magistrate's decision, the Southern District's chief judge, Loretta Preska, relied upon the solution called for in the Secure Communications Act of 1986.

Passed long before the rise of cloud computing, that law created a so-called "SCA warrant," which straddles the line between a warrant and a subpoena and treats emails held on Microsoft servers as the company's "business records."

For the BSA's Espinel, this statute is "outdated and outmoded for the world today."

Nuala O'Connor, who heads the Washington-based Center for Democracy & Technology, said that the notion that her private communications are another company's business records is "profoundly offensive."

"That's not a business record," she said. "That's our lives."

Throughout the press conference, the panelists discussed how NSA whistle-blower Edward Snowden helped shape the debate by revealing the government's collection of phone and email information.

But Snowden's disclosure of a document suggesting Silicon Valley's complicity in this collection through the NSA's surveillance operation code-named "Prism" went unmentioned inside Microsoft's press conference.

As discussion turned to how such leaks affected trust in the U.S. government, Microsoft's lawyer Brad Smith pointed out that Preska's ruling means that Irish and German citizens "don't get the opportunity to trust their governments."

Courthouse News has obtained a copy of the brief that BSA - the Software Alliance filed with the Center for Democracy and Technology, the U.S. Chamber Of Commerce, the National Association of Manufacturers and ACT - the App Association.

Apple filed its brief alone, while NYU Law's Brennan Center for Justice partnered on its brief with the American Civil Liberties Union, the Constitution Project, and the Electronic Frontier Foundation.

All told 28 tech and media companies, 23 trade associations, and 35 computer scientists have filed amicus briefs for Microsoft.

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