DOJ Tells Court That Of Course It Can Go On A Fishing Expedition Globally For Emails Microsoft Stores Overseas
from the because-we're-the-us-gov't-dammit dept
Last month, we wrote about Microsoft challenging the DOJ's attempt to use the outdated Electronic Communications Privacy Act (ECPA) to go fishing for emails held overseas. As Microsoft rightly noted, a warrant does not apply overseas. A magistrate judge tried to dance around this, saying that a warrant under ECPA is really kinda like a subpoena. But Microsoft points out how insane that is:This interpretation not only blatantly rewrites the statute, it reads out of the Fourth Amendment the bedrock requirement that the Government must specify the place to be searched with particularity, effectively amending the Constitution for searches of communications held digitally. It would also authorize the Government (including state and local governments) to violate the territorial integrity of sovereign nations and circumvent the commitments made by the United States in mutual legal assistance treaties expressly designed to facilitate cross-border criminal investigations. If this is what Congress intended, it would have made its intent clear in the statute. But the language and the logic of the statute, as well as its legislative history, show that Congress used the word "warrant" in ECPA to mean "warrant," and not some super-powerful "hybrid subpoena." And Congress used the term "warrant" expecting that the Government would be bound by all the inherent limitations of warrants, including the limitation that warrants may not be issued to obtain evidence located in the territory of another sovereign nation.The DOJ has responded to Microsoft's filing and basically says yeah, whatever, we can take whatever we want, and if it's overseas, who cares?
Overseas records must be disclosed domestically when a valid subpoena, order, or warrant compels their production. The disclosure of records under such circumstances has never been considered tantamount to a physical search under Fourth Amendment principles, and Microsoft is mistaken to argue that the SCA provides for an overseas search here. As there is no overseas search or seizure, Microsoft’s reliance on principles of extra-territoriality and comity falls wide of the mark.A bunch of tech and telco companies have all jumped into the case on Microsoft's side as well, noting that the DOJ's argument would almost certainly violate data privacy laws in other countries, not to mention piss off governments around the globe. The crux of the argument, as per usual with the DOJ, is that when it wants data, it will twist and twist and twist the laws to enable it to get access to as much data as possible, with as little scrutiny as possible. This is just one of many reasons why we need serious ECPA reform -- such that it actually respects the 4th Amendment. But, in this case, it would be nice to have a judge realize that even under such an outdated law, the DOJ's interpretation is simply out of line.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: doj, ecpa, email, jurisdiction, overseas, sca, subpoena, warrant
Companies: microsoft
Reader Comments
Subscribe: RSS
View by: Time | Thread
Of course even then I don't imagine the DOJ will care, they aren't the ones who will be screwed if they order a company to break the law of another country in order to get some data they want.
[ link to this | view in chronology ]
Love it, it worked when I was a kid too DOJ
What-ever the other party claims, just keep saying "Nah-ah" with your fingers in your ears until they quit and give in.
[ link to this | view in chronology ]
Records vs. Data
This confusion of terms is on purpose to help the slope get slippyer.
[ link to this | view in chronology ]
Re: Records vs. Data
[ link to this | view in chronology ]
So to draw this out further...
It wouldn't surprise, or phase me, at all, if Google or Microsoft, just up and left the United States as a place of doing business, to preserve this requirement. How will our government justify the potential loss of jobs, tax revenue, and technology, as a result?
[ link to this | view in chronology ]
Re: So to draw this out further...
[ link to this | view in chronology ]
Re: So to draw this out further...
We have some pretty extensive trade agreements with most countries but there has to be a way to do it. If we can be engaged in armed conflict for decades and still be the good guys we can certainly fuck over "turncoat companies".
Maybe it is as simple as just asking whatever country they go to for a stipulation (or whatever it is called) that allows for the persecution of traitorous companies.
[ link to this | view in chronology ]
Re: So to draw this out further...
At some point these companies are going to look at their bottom lines and decide whether to stay in the US and continue to loose profits or move to another country outside the jurisdiction of the US.
Germany as well as a couple of other EU countries are considering ending the financial data transfers that the US demands for both the IRS and for looking for terrorist financial data. This won't ease those fears but rather will push it to a head.
I would imagine following that will be the denial of forwarding passenger data to the US. That too will create quite a problem for the US.
While they may stonewall the rest of the way through the Obama term, it won't be going away as an issue.
[ link to this | view in chronology ]
Kill foreigners in their own country; check.
Kill US citizen in foreign country; check.
Spy on foreign governments and their heads; check.
You're either with us or against us; check (hint: they're all against us)
[ link to this | view in chronology ]
Re:
If your government is weak enough to allow other to come and kill people on your soil - that's YOUR fault.
>> You're either with us or against us; check (hint: they're all against us)
That's true for any country, USA is not special here, just a big one.
[ link to this | view in chronology ]
Give it time, justice will come through.
All despotic leaders and their followers have eventually faced a firing squad or the end of a rope.
They all thought they were right and the citizens were wrong. They placed their pocketbooks ahead of their countrymen. They were all eventually judged.
[ link to this | view in chronology ]
ESI
Anyway, I thought discovery could include anything a corporation controlled. Am I wrong?
Otherwise wouldn't Mafia types keep all their information on servers in a place that has ESI/privacy/etc laws like Switzerland's banking laws.
I love government bashing but I don't get how it is wrong. Educate me.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Bill Gates, or any of his fellow shysters, can hide hard drives in their arses. If that makes them feel more secure.
It has nothing to do with fact of producing data due to subpoena. Remember, they DO NOT challenge subpoena itself.
If we allow this shit to fly, then any single defendant will just store DATA outside US, and use it to advance criminal activity. Goldman Sucks, can you hear me?
After all, the Feds did not try to seize hard drives. Did they? They asking for data.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re:
Yea, all this ideas about laws and due process, and search by order are so outdated! If any criminal is allowed to "remain silent", it will "advance criminal activity"!
Hear, hear. I tell - go for it. But don't be surprised when not only criminal, but all sane people won't store data hands of US corporation.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Law vs. Ego
[ link to this | view in chronology ]
Interesting
It kind of make you wonder why they aren't even lifting a finger to try and find the missing IRS e-mails. Hmmmmmmm.
[ link to this | view in chronology ]
Re: Interesting
[ link to this | view in chronology ]
Maybe...
Priorities of corporations these days seem to be basically "fuck the customers, pander to shareholders" - we'll see how the shareholders respond when they have no more customers.
[ link to this | view in chronology ]
Who am I kidding. That's probably how it works already.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
This "Department of Justice" needs to be shut down
And that's something Justice cannot afford. This institution needs to be rebuilt from the ground up until it serves the interests of Justice rather than its own and that of the government.
[ link to this | view in chronology ]
Long ago and far away...
[ link to this | view in chronology ]
You now have no excuse to go after others for 'hacking' into Microsoft's servers.
Morons.
[ link to this | view in chronology ]
Pot Kettle Black?
Sigh! Yea I know, rhetorical question
[ link to this | view in chronology ]
On the other hand, "screw the law, we make our own as we go along" DOJ need to be stopped. MLATs exist for a reason.
[ link to this | view in chronology ]