Microsoft victory in overseas email seizure case is upheld

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By Jonathan Stempel

<span class="articleLocation”>An equally divided federal appeals court refused
to reconsider its landmark decision forbidding the U.S.
government from forcing Microsoft Corp and other
companies to turn over customer emails stored on servers outside
the United States.

Tuesday’s 4-4 vote by the 2nd U.S. Circuit Court of Appeals
in Manhattan let stand a July 14 decision that was seen as a
victory for privacy advocates, and for technology companies
offering cloud computing and other services worldwide.

But the dissenting judges said that decision by a
three-judge panel could hamstring law enforcement, and called on
the U.S. Supreme Court or Congress to reverse it.

“The panel majority’s decision does not serve any serious,
legitimate, or substantial privacy interest,” Circuit Judge Jose
Cabranes wrote in dissent.

Peter Carr, a U.S. Department of Justice spokesman, said: “We are reviewing the decision and its multiple dissenting
opinions and considering our options.”

The case attracted significant attention from technology and
media companies concerned that a ruling for the government could
jeopardize the privacy of customers, and make them less likely
to use cloud services if they thought data could be seized.

In the July decision, Circuit Judge Susan Carney said
Microsoft could not be forced to turn over emails sought for a
narcotics case, but stored on a server in Dublin, Ireland.

Though Microsoft is based Washington state, Carney said the
emails were beyond the reach of domestic search warrants under
the Stored Communications Act, a 1986 federal law viewed by many
technology companies and privacy rights supporters as outdated.

Microsoft was thought to be the first U.S. company to
challenge a domestic search warrant seeking data held outside
the country.

Its position was supported by dozens of technology and media
companies including Amazon.com, Apple, CNN, Fox News Network,
National Public Radio and Verizon Communications, as well as the
American Civil Liberties Union and U.S. Chamber of Commerce.

But Tuesday’s dissenters said it should not matter where the
emails were stored because Microsoft was a U.S. company.

They also said the panel decision did not properly address
the challenges that electronic data storage poses for law
enforcement.

“It has substantially burdened the government’s legitimate
law enforcement efforts; created a roadmap for the facilitation
of criminal activity; and impeded programs to protect the
national security of the United States and its allies,” Cabranes
wrote.

He expressed hope that the panel’s view of the 1986 law “can
be rectified as soon as possible by a higher judicial authority
or by the Congress.”

Brad Smith, Microsoft’s chief legal officer, welcomed
Tuesday’s vote. In a statement, he also urged Congress to
modernize the law “to keep people safe and ensure that
governments everywhere respect each other’s borders.”

The 2nd Circuit almost never rehears cases “en banc,” where
all active judges participate. Three of its 11 active judges
recused themselves on Tuesday.

The case is Microsoft v U.S., 2nd U.S. Circuit Court of
Appeals, No. 14-2985.



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