[kictanet] EFF to Court: U.S. Warrants Don't Apply to Overseas Emails

[Mwendwa Kivuva]

EFF to Court: U.S. Warrants Don't Apply to Overseas Emails

Microsoft Fights to Protect Data Held on Servers in
Ireland

San Francisco - The Electronic Frontier Foundation (EFF)
has urged a federal court to block a U.S. search warrant
ordering Microsoft to turn over a customer's emails held in
an overseas server, arguing that the case has dangerous
privacy implications for Internet users everywhere.

The case started in December of last year, when a
magistrate judge in New York signed a search warrant
seeking records and emails from a Microsoft account in
connection with a criminal investigation.  However,
Microsoft determined that the emails the government sought
were on a Microsoft server in Dublin, Ireland.  Because a
U.S. judge has no authority to issue warrants to search and
seize property or data abroad, Microsoft refused to turn
over the emails and asked the magistrate to quash the
warrant.  But the magistrate denied Microsoft's request,
ruling there was no foreign search because the data would
be reviewed by law enforcement agents in the U.S.

Microsoft appealed the decision.  In an amicus brief in
support of Microsoft, EFF argues the magistrate's rationale
ignores the fact that copying the emails is a "seizure"
that takes place in Ireland.

"The Fourth Amendment protects from unreasonable search and
seizure.  You can't ignore the 'seizure' part just because
the property is digital and not physical," said EFF Staff
Attorney Hanni Fakhoury.  "Ignoring this basic point has
dangerous implications - it could open the door to
unfounded law enforcement access to and collection of data
stored around the world."

The government has argued that allowing a U.S. judge to
order the collection of data stored abroad is necessary,
because international storage would make it easy for U.S.
Internet companies to avoid complying with search warrants.
 But Microsoft asserts that the government's legal theory
could hurt U.S. technology companies that are trying to do
business internationally.  Additionally, EFF argues in its
amicus brief that the government's approach hurts Internet
users globally, as it would allow the U.S. to obtain
electronic records stored abroad without complying with
mutual assistance treaty obligations or other nations' own
laws.

"Microsoft is doing the right thing by pushing back here.
It's great to see a tech giant fighting for its customers,"
said Fakhoury.

For the full brief in this case:
https://www.eff.org/document/eff-amicus-brief-support-microsoft

For this release:
https://www.eff.org/press/releases/eff-court-us-warrants-dont-apply-overseas-emails

About EFF

The Electronic Frontier Foundation is the leading
organization protecting civil liberties in the digital
world. Founded in 1990, we defend free speech online, fight
illegal surveillance, promote the rights of digital
innovators, and work to ensure that the rights and freedoms
we enjoy are enhanced, rather than eroded, as our use of
technology grows. EFF is a member-supported organization.
Find out more at https://www.eff.org.
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