Twenty years after the Clinton administration tried to stop the release of Microsoft's Windows 95, the Obama Justice Department is asserting that the company's Dublin, Ireland data storage hub, or cloud, is part of the United States.
In 2013, Justice demanded emails from Microsoft as part of a narcotics investigation—itself a regular practice that Microsoft regularly accepts and complies with. However, once the company realized the emails were held in Ireland, it informed the government it could not honor the demand.
In an interesting echo of President Barack Obama's dismissal of concerns about federal government surveillance of domestic emails, Microsoft turned over meta-data to the Justice Department, but is withholding the actual message contents.
The impasse created a real-life Back To The Future scenario because the only law governing 2015 government access to email is the 1986 Electronic Communication Privacy Act.
In 1986, Congress passed ECPA to restrict the federal government, but because it was silent in regards to overseas cloud facilities, Preet Bharara, the larger than life U.S. Attorney for Southern District of New York, also known as Manhattan, asserts in court filings he has the green light, regardless of the privacy laws where data is held.
Enter Sen. Orrin G. Hatch (R.-Utah), who Feb. 12 filed his Law Enforcement Access to Data Stored Abroad bill that reins in the federal government's ability to demand information stored in other countries.
“As Congress works to reform our domestic privacy laws, we must modernize the legal framework for government access to digital data stored around the world. This bill recognizes that these two issues are inextricably linked,” said Hatch, the chairman of the Senate Committee on Finance and the chamber's president pro tempore.
The LEADS bill clarifies the federal government's legal boundaries left unspecified by the 1986 ECPA at the water's edge.
Now the issue is moving on two tracks: judicial and legislative.
Judge Loretta A. Proska, appointed by President George H. W. Bush, ruled in favor of Bharara July 31 and ordered Microsoft to deliver all the email content.
Brendon Lynch, the software giant's privacy officer, wrote the same day in the company's Cyber Trust Blog that Microsoft was making a stand.
“Microsoft believes you own your emails stored in the cloud and that they have the same privacy protection as paper letters sent by mail,” Lynch wrote. “At Microsoft, we know that customer trust is essential to our business. People will use technology only if they can trust it, and our commitment to protecting customer data is an important element in building and maintaining that trust.”
Key to Microsoft's position is that it does not actually own the emails that it facilitates, he wrote. “The government argues that customer emails stored in the cloud become the business records of the cloud provider, and therefore have a lower level of legal protection than an individual’s personal communications.
The case is now before the Second Circuit on appeal and it is expected that after each side submits briefs and counter-briefs the case will be before the judge in the summer.
Speaking on a Feb. 11 conference call exclusively for members of the Federalist Society, Microsoft's Deputy Chief Counsel David Howard said the problem with the government's case has a glaring flaw.
“It is trying to shoehorn this 1986 statute into a world in which email is the more prolific form of communication, both professionally and personally, where people literally have everything in their entire lives, not just on their computers, but in what we call 'the cloud,'” he said. “The most private parts of people's lives are in the cloud.”
In Ireland, the case is seen as a major assault on sovereignty and, maybe more importantly, the country's drive to become the home for international technology companies.
In addition to Microsoft, Ireland is home to major facilities operated by Facebook, Linkedin, Oracle and Apple.
Antoin O'Lachtnain, a director at the Dublin-based information technology company exmuris, said the Irish technology community is anxious about the Microsoft case.
O'Lachtnain, who was for eight years a director at the open Internet advocacy agency Digital Rights Ireland, said there would be fallout if the Justice Department prevails over Microsoft.
“The international network of treaties in relation to mutual legal assistance would stand for naught,” he said. “One obvious result of this is that non-friendly regimes in South America, the Middle East and Asia would use this as opportunity to target people who live in the United States, but who use Internet services that have a legal presence in those non-friendly regimes’ jurisdictions.”
In last few election cycles, the technology crowd has supported Obama and the Democrats financially and technically—giving Democrats a huge edge in their voter analysis, robo-polling and social media platforms.
Hatch's LEADS bill, aside from updating and making straight the government's ability to grab data overseas, is a fresh example to the hi-tech community that in the end, it is the Republicans backing them up.
Good policy is good politics.