In a show of unity within an otherwise highly competitive landscape, some of Microsoft’s biggest rivals are backing the vendor’s fight against the United States Government’s efforts to obtain customer data kept in other countries.
The battle between the US Justice Department and Microsoft over whether prosecutors should get access to emails stored on the company's servers overseas has been waged since at least 2013, when the US Government sought a warrant requiring information about a Microsoft email account that prosecutors believed was being used for narcotics trafficking.
Microsoft, which has over 100 data centres in 40 countries, was the first US company to challenge a domestic search warrant seeking data held outside the country. There have since been similar challenges, many brought by Google.
In October last year, the US Supreme Court agreed to resolve the dispute, with court justices deciding to hear the Trump administration's appeal of a lower court's 2016 ruling preventing federal prosecutors from obtaining emails stored in Microsoft computer servers in Dublin, Ireland.
Now, other tech players are chiming in with their support for Microsoft in its legal battle.
Apple, Amazon, Cisco, Dropbox, Google, HP Inc, SAP and Salesforce are among the companies named represented in an amicus brief – a legal document filed in court cases by non-litigants with a strong interest in the subject matter – pushing for the court to favour Microsoft in its decision.
“This case presents a question not yet addressed by Congress -- whether US law enforcement can utilise a search warrant to gain access to the contents of a foreign user’s email messages, stored by a US electronic communications service provider in an Irish data centre,” the brief stated.
“Amici [the entities submitting the amicus brief] believe the answer is ‘no’,” it said.
Among the reasons given by the companies’ legal reprsentatives is that the existing laws don’t provide for extraterritorial reach, given that Congress did not contemplate US providers storing data outside the US when the law was enacted in 1986 – even if it is a common practice now.
The document goes further, suggesting that any such decision resides in the hands of the country’s law makers.
“If the potential effects of allowing US law enforcement to obtain data belonging to foreign users stored within foreign borders are to be properly weighed and balanced, Congress, not the courts, must do so,” it said.
For Microsoft’s president and chief legal officer, Brad Smith, the show of support, not just from tech companies, but many other parties such as the European Commission, France and Ireland, is a welcome sight.
“On Thursday, 289 different groups and individuals from 37 countries signed 23 different legal briefs supporting Microsoft’s position that Congress never gave law enforcement the power to ignore treaties and breach Ireland’s sovereignty in this way,” Smith said in a blog post published on 19 January.
“How could it? The government relies on a law that was enacted in 1986, before anyone conceived of cloud computing.
“As these officials have explained, the US Department of Justice’s attempt to seize foreign customers’ emails from other countries ignores borders, treaties and international law, as well as the laws those countries have in place to protect the privacy of their own citizens,” he said.
While the case is yet to be decided by the court, Smith warned that if the US Government can, “assert this type of unilateral power to reach into data centres that are operated by US companies in other countries, foreign countries and foreign customers will question their ability to trust American companies”.
Smith, like many of Microsoft’s peers, is calling for the ultimate decision to lie in the hands of the nation’s legislators.
“Everyone on both sides of this case agrees that these are real problems that need real solutions,” Smith said. “But they need to be crafted with a scalpel, not a meat cleaver.
“And as so many groups across the political spectrum and countries now agree, let’s hope the Supreme Court leaves it to Congress to do just that,” he said.
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