Overseas Email Warrant Challenged by Nonprofit

MANHATTAN (CN) - A federal judge should reverse orders for Microsoft to turn over data from servers in Dublin, Ireland, a nonprofit said Friday, saying the ruling reflects "a fundamental misunderstanding about how the Fourth Amendment's privacy protections apply in the digital world."

The search warrant that U.S. Magistrate Judge James Francis had issued on Dec. 4 required Microsoft to release the emails of a certain user, along with his associations, identifying information and contacts with the company's support-services personnel.

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

Francis refused the company in April, and Microsoft is now appealing the order with the Southern District of New York.

The Electronic Frontier Foundation filed an amicus brief in support of the tech giant Friday, emphasizing that the warrant requires copying of the messages in Ireland.

Francis thus ignored the fact that a Fourth Amendment-triggering seizure will occur before the messages are searched, the EFF said.

Though Francis heavily quoted "A User's Guide to the Stored Communications Act," published in 2004 by George Washington University Law professor Orin Kerr, in support of his ruling, the EFF quoted a more recent Kerr publication for is argument.

"The most consistent way to apply the Fourth Amendment seizure doctrine to computer data is to hold that electronic copying ordinarily seizes it under the Fourth Amendment," Kerr wrote in the 2010 article "Fourth Amendment Seizures of Computer Data."

EFF attorney Hanni Fakhoury added in his brief that "any other rule leaves the government free to collect all the electronic data it wants without the constitutional limitations that would apply to physical, tangible data."

Francis had quoted a portion of Kerr's 2004 treatise that says 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 said. "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."

But the EFF's Fakhoury said "Professor Kerr later came to recognize that his 'prior approach was wrong' because it 'did not recognize the importance of access to data in the regulation of government evidence collection," the 21-page brief states.

Territorial limitations under the Stored Communications Act also should have factored into the magistrate's analysis, according to the brief.

"In the absence of ambiguity, the magistrate had to apply all the concepts associated with the warrant requirement, including extraterritoriality," Fakhoury wrote.

Francis had cited Kerr again in refusing to quash the subpoenas under bilateral treaties to prevent diplomatic mishaps. Kerr called the 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," according to the ruling.

But the EFF said that the United States must respect "other countries' sovereign interests in protecting the privacy of their citizens' electronic communications and data."

"It should take more than speculation to relieve the government of its obligation to comply with its international treaties," the brief states.

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