Saturday01 April 2023

Microsoft's Fight Against Search Warrant Could Have Big Consequences

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When Edward Snowden revealed the extent of US Government surveillance and just how much corporations cooperated with them to accomplish their goals everyone was shocked. Many could not believe that the companies we trust would betray us in the ways that Snowden showed. Even as the clarifications and denials were being typed up by Microsoft, Google and others the consumer backlash was starting and not just in the US. Consumers here and overseas were pulling their data out and cancelling accounts. This change has (and will continue to) seriously hurt technology companies financially. As we all know, the only way to motivate big business is to hit them in the bank account.

Perhaps this financial impact is one of the reasons that Microsoft is publicly fighting a court order to reveal data stored in one of their data centers in Europe. They probably could use a nice PR boost at the moment considering the gloom that has settled over the company in the last few years. The story goes like this:

The US Government is looking into the criminal activity of a person who does not live in the US, but who may have committed a crime in the US. Normally the US would go through treaties that are in place between countries for just this to obtain any electronic evidence that they need. In this case it seems that they do not want to take the time and effort required to follow these legal channels. Instead they are trying to get the information by serving a warrant to the corporate headquarters of the company in question: Microsoft. Because Microsoft is a US company they feel they can legally force them to execute search warrant for data that is stored overseas.

Of course Microsoft does not see it this way. They feel (rightly in this case) that what amounts to local warrant is not enforceable on their overseas data center and they are fighting the release of this information. EFF (Electronic Frontier Foundation) Lawyer Lee Tien stated: “United States search warrants do not have extraterritorial reach”. After Magistrate Jude James C. Francis ruled that Microsoft must comply with the warrant they (Microsoft) continued to fight. Judge Francis described the order as a hybrid form of subpoena and search warrant (which is odd). He claimed that in the Electronic Communications Privacy Act of 1986 created an in-between class of warrant that applied in this case which allowed the combination of the reach of a subpoena with the secrecy of a warrant. We are not sure that really holds up when you consider the fact that in 1986 the world was hitting the massive speeds of 28.8 Kbps.

The question here is all about reach and jurisdiction. The US DOJ has been pushing their jurisdiction and powers of search quite a bit over the last couple of years. While they might have laudable goals in some of the cases, others appear to be more abusive in nature. We can look at the way the DOJ and FBI handled the searches in the Mega Upload case, the way they have pushed US laws on other countries based on corporate interests (The Pirate Bay case) and others. If the DOJ wins this one, it could be a further erosion of the little rights to privacy we have. It would also greatly expand the search powers of the US which is sure to have an economic impact on the companies involved as consumer confidence erodes as fast as the DOJ’s reach extends…

In this case a win for Microsoft would be a very big deal for more than just Microsoft. It would solidify the proper restrictions on the reach of a domestic search warrant and slow down the overzealous collection of electronic data by the US. It could also stop the multi-billion dollar hemorrhaging from our tech sector because the US becomes more of a joke around the world.

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Last modified on Wednesday, 11 June 2014 10:38

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