Belgian Court Fines Microsoft For Failing To Comply With Its Impossible Order

from the we-said-JUMP dept

Mon, Oct 31st 2016 6:32am — Tim Cushing

You can't always get what you want. But if you try sometime, you just might fine... a company for being unable to deliver on the impossible.

Belgium has fined Skype €30,000 for failing to comply with a court request to intercept users' communications, something Skype claims was technically impossible at the time of the request.

According to Het Belang van Limburg, a Dutch-language newspaper in Belgium, the fine was delivered by the court in Mechelen because Skype had failed, in September 2012, to deliver up anything more than metadata in response to an investigation into a criminal organisation.

The court, failing to understand anything but its power to order people around, demanded that Skype turn over communications. Skype turned over the only thing it could actually obtain, explaining that its architecture didn't support the interception of calls. No dice. That only made the court angry.

The court was no more happy to have pointed out to it that Microsoft didn't actually fall under its jurisdiction. It maintains no data centers in Belgium, nor does it have anyone employed there. Microsoft suggested the court work with governments of countries where it actually maintains a presence and utilize their mutual assistance treaties.

None of these facts appear to have mattered. The court says Microsoft should be able to do the impossible because the law is the law.

Het Belang van Limburg quoted prosecutor Tim Hoogenbemt as saying: "Skype offers services in our country, so it needs to know the laws. And therefore know that the court may ask interception measures."

Sometimes the law isn't the law, though. Microsoft pointed out the law doesn't actually apply to it since it's a software provider, rather than a service provider.

And sometimes the law is an ass. The fine is still in place despite arguments of impossibility, illegality, and "not applicable" to the contrary. It may not stick. Microsoft is appealing the decision.

This isn't the first time Belgian courts have overreached. Back in 2009, Belgian officials blew off perfectly workable mutual assistance treaties, demanding user information directly from Yahoo's US headquarters. Yahoo, like Microsoft, pointed out that it has no data centers or employees in Belgium. Instead of rethinking its approach, the government took the company to criminal court. That court, like this one, decided to fine the company for doing the exact thing it was supposed to be doing: protecting its users' privacy.

And that's not the limit of Belgian exceptionalism. A "royal decree" from the Belgian government (which bypasses the Parliamentary approval process needed for actual legislation) forces ISPs to collect and store tons of info on their subscribers, including how many emails are sent, VoIP use (hello, Skype!), call metadata, etc. -- just in case law enforcement might need it. When it was pointed out this decree violated the EU's privacy directive, the government shrugged and called the agreement it signed "obsolete."

Given these decisions, it's not even useful advice to suggest just not doing business in Belgium. It quite obviously doesn't matter to the courts where the data or communications they're seeking are actually located.

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Filed Under: belgium, intercept, phone calls, skype, warrant
Companies: microsoft, skype

30 Comments

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Reader Comments

The First Word

“

I see stuff like this about Belgium and it makes me wonder. Maybe Douglas Adams had a point...

—Mason Wheeler

”

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Mason Wheeler (profile), 31 Oct 2016 @ 6:46am

I see stuff like this about Belgium and it makes me wonder. Maybe Douglas Adams had a point...
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"I AM the law!", 31 Oct 2016 @ 6:47am

Who presided this court? Judge Dredd apparently...
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Christenson, 31 Oct 2016 @ 6:53am

boycott?? s/legislation0/legislation)/
On the contrary, I think a boycott of Belgium, joined by google and everyone else, might be quite effective.
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Norahc (profile), 31 Oct 2016 @ 6:55am

Another court
Another court attempting to do its best Cartman imitation by shouting, "Respect my authoritah!"
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hij (profile), 31 Oct 2016 @ 6:56am

Are they really a software provider?
What are the terms of the license used in distributing skype? I do not know the details myself. If the license insists that the software belongs to Microsoft and the users are simply making use of Microsoft's property then Microsoft may well be considered a service provider. Again, I do not know if this is the case, but if so then Microsoft may be trying to have it both ways.
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Anonymous Coward, 31 Oct 2016 @ 7:08am

Re: Are they really a software provider?
Microsoft and no other Windows level software provider sells software.
All windows level software comes with an end user agreement. That is the software is rented.
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Annonymouse, 31 Oct 2016 @ 7:15am

So why isn't anybody publishing the names of these judges?

Everyone and their grade school teacher needs to know who these idiots are so that they can avoid them.

Can grade schools revoke graduation if the students cheated and latter prove their ignorance of basic subject matter?
Or is this a case of some ongoing neurological degeneration?
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Anonymous Coward, 31 Oct 2016 @ 7:17am

So what happens if Microsoft just decides ... it doesn't want to pay? Does Belgium actually think it's going to force the U.S. to make it pay?
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Anonymous Coward, 31 Oct 2016 @ 7:20am

but the USA is exactly the same, so why bring this up? look what the DoJ is trying to do in Ireland and tell me what's different. the USA is trying to get info it isn't entitled to from Microsoft and it's gonna carry on doing whatever the hell it wants to get it! the fact that it isn't entitled to that info seems to be irrelevant to the DoJ. just like so many other instances concerning US law enforcement, it thinks it can have whatever it wants, can screw into the ground whoever it wants over anything, then whines like fuck when somewhere else wants something from the USA, and that's including citizens!!
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Anonymous Coward, 31 Oct 2016 @ 7:27am

Re:
Well given how the US forces other to comply with its courts.....or is trying to bully the biggest bully around doomed to failure.
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Alphager (profile), 31 Oct 2016 @ 7:43am

> Microsoft pointed out the law doesn't actually apply to it since it's a software provider, rather than a service provider.

Skype (the software) does not work without the skype server infrastructure, which is provided by Microsoft as a service to all Skype users.
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Michael, 31 Oct 2016 @ 7:47am

"something Skype claims was technically impossible at the time of the request"

Am I the only one that is concerned about that particular statement?
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kallethen, 31 Oct 2016 @ 7:50am

Re:
The "at the time of..." part? My first thought was... "Okay, but what what about now?"
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Anonymous Coward, 31 Oct 2016 @ 8:00am

Re: Re:
Microsoft acquired Skype in may 2011, when it was a fully distributed system. Since then, they have moved the servers onto their own infrastructure. That move took time, and so they probably did not have the control and access to the data then that they do now. In other words you are right to worry about now.
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That Anonymous Coward (profile), 31 Oct 2016 @ 8:02am

The people of Belgium should be very concerned about their courts & government.
Having no clue how things actually work & refusing to accept reality isn't something you want in those charged with the running of the country. (See also: Congress)

They can throw all the fines they like but it will not solve the issue & most assuredly won't make M$ want to bother working with them. Why do anything for those who don't understand the basics, and even if you manage to do the impossible they will want more.
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Oninoshiko (profile), 31 Oct 2016 @ 8:18am

Re:
The difference (as microsoft points out, so helpfully if you bothered to read the article), is that microsoft has offices in the US, and is therefore under the jurisdiction of US courts.
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JoeCool (profile), 31 Oct 2016 @ 8:26am

Re: Re: Are they really a software provider?
Unless it's open source. Then it's neither sold nor rented, and the user has virtually full rights over his own system.
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Anonymous Coward, 31 Oct 2016 @ 9:22am

Re:
Even Dredd doesn't toss the law out the window for the sake of enforcement. Criminals out windows however...
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Anonymous Coward, 31 Oct 2016 @ 10:02am

Re: Re:
spot on!
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Anonymous Coward, 31 Oct 2016 @ 10:23am

Re:
No, you are not. They lied. Again.

Bill gates can allow nsa real time access, but becomes stupid once order is from overseas.
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Anonymous Coward, 31 Oct 2016 @ 11:13am

Actually, it's not that Skype goes to Belgium to offer their services, but it's the Belgians the ones who "travel" to the US or any country where MS has their servers.

Well, the truth is that it's neither, because the user doesn't actually leave their home.

The only thing that Belgian government can do is to force their ISPs to block Skype from being used by their citizens. But no, they have no jurisdiction over MS or any other service provider that isn't inside their borders.

Also, a Royal Decree that bypasses law and that regulates matters related to the privacy and secret to communications right by itself? Without Legislative oversight?

What kind of shitty Constitution does Belgium have to allow that? In Spain, any kind of regulation related to that would need an Organic Law (like the Data Protection Organic Law), that requires not only simple majority, but absolute majority from the Congress.
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Anonymous Coward, 31 Oct 2016 @ 11:16am

Re:
Just to make it clear.

A Royal Decree is used in parliamentary monarchies (usually) to sanction or approve a regulation by the Executive Power.

That is, is a regulation passed by the Government, that is under the legal regulation (or Law) in terms or hierarchy.
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Anonymous Coward, 31 Oct 2016 @ 1:01pm

Anything is possible for the judge that doesn't have to do it himself.
Just saying...
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Padpaw (profile), 31 Oct 2016 @ 1:06pm

Sounds like they are using the American model of court systems.
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Anonymous Coward, 31 Oct 2016 @ 1:49pm

Re: Re:
Bill Gates has not been involved in day to day running of Microsoft for about a decade. Find a new boogeyman.
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David, 31 Oct 2016 @ 1:51pm

Douglas Adams?
Arguably, Monty Python was first.(https://www.youtube.com/watch?v=knwwgZNeIpA) But then Thackeray already made a quite unflattering portrait of the Belgians' military fortitude at the battle of Waterloo in "Vanity Fair".
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Roger Strong (profile), 31 Oct 2016 @ 3:24pm

Re: Re: Are they really a software provider?
That's making the assumption that the end user agreement holds up in court. As long as user aren't pirating the software on a commercial scale, they have little to worry about.

For example Microsoft's development software sold here in Canada has long had EULA clauses dictating that programmers don't sell their programs into Cuba. Clauses dictating that programmers don't use the development software on Linux or other operating systems. But those commandments are toothless if not actually illegal, and are simply ignored.

Internet updates mess that up, because a security update can sneak in unwanted changes. But that also happens with MacOS, Android and yes, even open source software.
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Anonymous Coward, 31 Oct 2016 @ 3:52pm

DOJ has a new best friend.
They have similar views to the Belgium court and its laws. Expect to see a reference to the famous, 'But they are doing it' excuse. Which is still famous in the grade school bunch.
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Châu, 31 Oct 2016 @ 6:24pm

Royal decree
Government Belgium is backwards. Royal decree is obsolete. Put it in museum in Middle ages history.
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nasch (profile), 1 Nov 2016 @ 6:01am

Re:

but the USA is exactly the same, so why bring this up? look what the DoJ is trying to do in Ireland and tell me what's different.

Guess what? Techdirt covered that too.

https://www.google.com/webhp?q=ireland%20microsoft%20site%3Atechdirt.com
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