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Court Orders Microsoft To Obey Search Warrant for Overseas Data

A U.S. district court judge has upheld a search warrant ordering Microsoft to turn over e-mails stored in its datacenter in Dublin, Ireland.

Judge Loretta Preska of the U.S. District Court for the Southern District of New York on Thursday ruled that Microsoft must honor the search warrant, which was issued by a domestic magistrate judge in a criminal case that is believed to be drug-related. Microsoft filed an objection to the warrant in June. The identity and location of the e-mail's owner are not known.

In a two-hour hearing held last Tuesday, several tech companies -- including Apple, AT&T, Cisco and Verizon, along with the Electronic Frontier Foundation -- filed briefs in support of Microsoft's appeal of the warrant, according to published reports.

Microsoft said it will appeal Thursday's ruling.

The outcome of this case potentially sets a precedent for all U.S.-based cloud providers storing data abroad.

"Under the Fourth Amendment of the U.S. Constitution, users have a right to keep their e-mail communications private," wrote Microsoft Chief Counsel Brad Smith in April. "We need our government to uphold Constitutional privacy protections and adhere to the privacy rules established by law. We're convinced that the law and the U.S. Constitution are on our side, and we are committed to pursuing this case as far and as long as needed."

Smith elaborated on that view in an op-ed piece published in The Wall Street Journal last week prior to the hearing. "Microsoft believes you own e-mails stored in the cloud, and they have the same privacy protection as paper letters sent by mail," he wrote. "This means, in our view, that the U.S. government can obtain e-mails only subject to the full legal protections of the Constitution's Fourth Amendment. It means, in this case, that the U.S. Government must have a warrant. But under well-established case law, a search warrant cannot reach beyond U.S. shores."

In upholding the warrant, Judge Preska argued that's not the point. "It is a question of control, not a question of the location of that information," Preska said, according to a report by The Guardian. The paper also noted that if the ruling is upheld, U.S. companies could lose billions of dollars in revenue to foreign competitors not subject to seizure by U.S. law enforcement agencies.

Hanni Fakhoury, staff attorney for the Electronic Frontier Foundation, told Computerworld that he wasn't surprised by the ruling, saying it ultimately will be decided by the Second Circuit Court of Appeals.

"I hope the Second Circuit looks closely at the magistrate's reasoning and realizes that its decision radically rewrote the Stored Communications Act when it interpreted 'warrant' to not capture all of the limitations inherent in a warrant, including extraterritoriality," Fakhoury said.

About the Author

Jeffrey Schwartz is editor of Redmond magazine and also covers cloud computing for Virtualization Review's Cloud Report. In addition, he writes the Channeling the Cloud column for Redmond Channel Partner. Follow him on Twitter @JeffreySchwartz.

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