Unwarranted

LAWYERS for Microsoft and the American government are due to face each other in a court in New York on July 31st. The two sides have been arguing for months about a warrant, served on Microsoft in December, which requires the company to hand over e-mails stored at data centres in Ireland. Microsoft has already challenged the warrant once, but the judge who issued it upheld it.

Microsoft has two main objections to the warrant, which law-enforcement officers sought during an investigation into drug-trafficking. First, it says, an American warrant cannot be used to seize evidence held abroad. Second, it claims that the warrant breaks the constitution’s Fourth Amendment, which forbids “unreasonable searches and seizures”, by not specifying where the evidence is to be taken from. The warrant refers only to “information…stored at premises owned, maintained, controlled or operated by Microsoft”. The company says the government should get the information by approaching the Irish authorities, using a bilateral treaty.

The government calls this absurd. If Microsoft’s argument stands, it believes, criminals could put electronic evidence beyond the long arm of the law simply by claiming to live outside the United States. (Microsoft, which has more than 100 data centres in 40 countries, stores e-mails and other data according to where users say they live.) The government also says using treaties to seek information can be slow.

What is more, it argues, Microsoft is defining a warrant too narrowly. This matters because the authorities need a warrant, which requires no prior notice of seizure, to get hold of unopened e-mails less than six months old. For older or opened e-mails, they need only a subpoena, a notice demanding that certain items be presented in court. The original judge agreed, saying that a warrant under the relevant law—the Stored Communications Act (SCA)—was a “hybrid” of a search warrant and a subpoena. In that case, Microsoft retorts, why did Congress bother to distinguish between a warrant and a subpoena when it drew up the law?

Commerce as well as principle explains Microsoft’s nitpicking—and the supporting briefs that other American tech firms have filed in the case. If foreigners fear their data are not safe from Uncle Sam’s prying eyes in an American-owned data centre, they may turn to domestic providers, at American companies’ expense. Such worries have grown since Edward Snowden’s leaks of American spooks’ activities last year. The tech firms may also hope a long court battle will prompt Congress to update the SCA. The law dates from 1986, when few imagined the internet’s borderless realm.