By Darren Smith, Weekend Contributor
There is an interesting ruling from U.S. Magistrate Judge James Francis in New York. The case stems from a search warrant sought by the government for the contents of an individual’s e-Mail account that was hosted by Microsoft but stored on a server located in Dublin, Ireland.
Magistrate Francis stated that internet service providers such as Microsoft or Google cannot refuse to turn over customer information and emails stored in other countries when issued a valid search warrant from U.S. law enforcement agencies.
In a statement, Microsoft said it challenged the warrant because the U.S. government should not be able to search the content of email held overseas.
“A U.S. prosecutor cannot obtain a U.S. warrant to search someone’s home located in another country, just as another country’s prosecutor cannot obtain a court order in her home country to conduct a search in the United States,” the company said. “We think the same rules should apply in the online world, but the government disagrees.”
Microsoft determined that the target account is hosted on a server in Dublin and asked Francis to throw out the request, citing U.S. law that search warrants do not extend overseas.
Francis agreed that this is true for “traditional” search warrants but not warrants seeking digital content, which are governed by a federal law called the Stored Communications Act.
A search warrant for email information, he said, is a “hybrid” order: obtained like a search warrant but executed like a subpoena for documents. Longstanding U.S. law holds that the recipient of a subpoena must provide the information sought, no matter where it is held, he said.
Microsoft stated it would seek a review of Francis’ decision by a U.S. District Court Judge.
The case brings a new frontier in what is considered the scope of the statutory law and the constraints brought by the constitution in a new area of privacy and communication. But beyond this the ramifications resulting could be large, especially given the public outrage over the oversteps of the U.S. government in its reaching into searching all things electronic and the increasingly large net the government is being further revealed to be casting.
Aside from the concerns of US citizens might have if the ruling is allowed to become practice there would be a great disincentive for individuals residing outside the United States to subscribe to U.S. based internet providers under fear the US government will then be allowed access to their private information even if that information is stored in their home country. It could also be the case where citizens who might through the laws of their country have a greater expectation of privacy than in the US might still have their privacy compromised because their account is hosted by a US based provider. This issue likely will cost revenue for American companies and even for wholly owned subsidiaries that are actually based in those foreign nations.
If such a ruling is allowed to stand, one has to wonder if any server anywhere in the world is subject to search by the US government if any nexus is formed between the server and any entity in the US. And, more disturbingly, if a communication or Cloud Storage system even crosses the United States on one hop or route does that mean that it too is subject to the jurisdiction of the United States? In cloud computing networks multiple servers in various locations can hold part or all of the subject data and if the cloud is maintained even in a small part by a US entity the entire cloud might be subject to search.
There have been calls from several European government leaders to create a network that is completely separated from the internet due in large part to the NSA scandal and overreach by the United States Government. Rulings such as this will be considered to back such an initiative. To keep their citizens safe from the reach of the US, it is increasingly being proven that total physical and virtual isolation from the United States might be the best course of action to protect their citizens.
By Darren Smith
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