Microsoft battles US over warrant for drugs case emails By Leo Kelion

Technology desk editor Published duration 9 September 2015

image copyright Thinkstock image caption Microsoft stores the disputed emails at its data centre in Dublin

Microsoft is returning to court to continue its fight against the US government's demand that it hand over emails stored at an Irish data centre.

The messages involved are alleged to contain details of narcotics sales.

In 2014, a court ruled in favour of the government's claim that because it had jurisdiction over the US-based company, it could force it to hand over data it controlled, even if stored abroad.

But Microsoft suggests that would put it in breach of privacy laws.

Instead, the company argues that the US "must respect the sovereignty of other countries" and has indicated that Washington should use legal assistance treaties if it wants access to information held in Ireland and other data centres outside the United States.

Ireland has already said that it would consider such a request "expeditiously".

So, the stand-off is being viewed as a test case that will determine the extent of the US government's powers over tech companies that offer cloud-based services.

image copyright Thinkstock image caption The case involves emails alleged to contain details of illegal trade of narcotics

Apple, Amazon, HP, eBay, AT&T, Verizon and Salesforce are among US companies that have voiced support for Microsoft's appeal.

"They think they have already lost quite a lot of business in Europe over monitoring and surveillance concerns, and they are afraid it will get worse if there is a perceived carte blanche for the US authorities to access emails stored abroad," said Carsten Casper, from tech consultancy Gartner.

"The EU has stronger privacy requirements, at least on paper, compared with other parts of the world, so tensions between the US and Europe are highest. But other countries are also concerned by US access to foreign records."

'Open floodgate'

Microsoft says that it wants to ensure people can "trust the technology on their desks and in their pockets".

"If the US government is permitted to serve warrants on tech companies in the United States and obtain people's emails in any country, it will open the floodgate for other countries to serve warrants on tech companies for the private communications of American citizens that are stored in the United States in a data centre owned by a foreign company," the company's lawyer Brad Smith recently told the Council on Foreign Relations think tank

"Imagine the immediate implications for journalists, advocacy organisations, or government officials here."

image copyright Getty Images image caption Microsoft says the US government needs to balance privacy and national security

However, federal prosecutors involved in the case note that it "typically takes months" to obtain information via treaty requests, while warrants issued directly to US companies can be handled much more quickly.

They add that Microsoft's system of storing data where customers say they are based is open to abuse.

"A criminal user can easily manipulate such a policy to evade the reach of US law enforcement by the simple expedient of giving false residence," they state in court papers

And they add that, anyway, US-based bodies have a legal obligation to comply with warrants issued under the Stored Communications Act, regardless of where the related electronic records are kept.

"With the benefits of corporate citizenship in the United States come corresponding responsibilities, including the responsibility to comply with a disclosure order issued by a US court," they wrote.

"Microsoft should not be heard to complain that doing so might harm its bottom line."

Microsoft's lawyer has said that if it loses the appeal, he will try to take the matter "all the way to the Supreme Court".

Apple refusal

image copyright Apple image caption Apple is reported to have said it could not comply with an order to pass on texts sent via iMessage

In a related development, Apple has said it could not comply with a court order to let US government investigators monitor texts sent via its iMessage system, according to a report in the New York Times

The paper reports that officials wanted the iPhone-maker to hand over messages in "real time" as part of an investigation into drugs and guns.

However, it says the firm said it could not do so because the messages were encrypted - meaning they are digitally scrambled - and only the handsets involved had the key.

It adds, however, that the firm did pass on some messages that had been saved to its iCloud storage service, which had been stored in an unencrypted form.

Apple has not commented on the report.