U.S. v. Microsoft

The ongoing conflict between an individual’s privacy and the public interest heads to the U.S. Supreme Court when the justices hear oral arguments in a lawsuit in which Microsoft refuses to turn over data in a drug case.

The U.S. Constitution does not include the actual word privacy, but the Fourth Amendment, which prevents illegal searches and seizures, has become the basis for the definition of the issue.

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This case involves Microsoft’s dispute with federal prosecutors over whether it must provide data hosted in a storage facility in Ireland. The dispute focuses on whether U.S. courts can compel a company to turn over an individual’s data when it is held overseas.

Simply put, the decision revolves around where “the cloud” exists. Cloud technology has become worth an estimated $250 billion.

If Microsoft wins, supporters will laud the decision as a victory for privacy. If the government wins, it will be seen as a victory of law enforcement. As usual, the truth lies somewhere in between. The company knows it will lose business if it cannot guarantee privacy to customers–much like the bankers who house drug money. The government as is its want is likely to overstep the boundaries if it wins.

The case has drawn extensive interest, including numerous briefs to the Supreme Court from abroad.

The showdown is unfolding on several fronts. Legislation in Congress would partially resolve disputes over law enforcement access to private data held across borders. The bills would obligate service providers to turn material over to prosecutors under certain conditions regardless of where in the world the material is stored.

Still, some mystery surrounds the legal dispute that was argued today in Supreme Court chambers. For one, prosecutors have never identified the person who was targeted in a warrant issued by a New York District Court judge in 2013.

Prosecutors demanded that Microsoft turn over all emails and information associated with the subject’s account, and the company responded that it could not be forced to turn over information stored overseas—in this case at a data center in Dublin.

Alternatively, prosecutors outside of the United States complain about obstacles to conducting investigations of criminal suspects using U.S.-based webmail.

“The cops in Brazil and the cops in India and the cops in France, all of the cops in the world, want to issue normal evidence orders in accordance with local law and they are frustrated or stymied by American rules,” Andrew Woods, a professor at the University of Kentucky College of Law, told Tim Johnson of the McClatchy Washington Bureau.

Woods cited a hypothetical case in which a Londoner is a suspect in the murder of a fellow Brit, a crime investigated by local police.

“Everything about that case is British,” Woods said, but police “cannot go to Google and compel Google to give them content of the suspect’s email account. They have to go through the mutual legal assistance process. That is not only slow it is also an affront to British sovereignty.”

The U.S. government has struck mutual legal assistance treaties, or MLATs, with about a third of the world’s countries. The mechanism, while useful, has its flaws.

Looming behind the debate is Edward Snowden, the former National Security Agency contractor who stole secrets about U.S. surveillance programs in 2013 before fleeing to Moscow.

“In the wake of the Snowden revelations, levels of trust around the world in the American government went down,” Woods said. “American businesses ever since have been scrambling to reassure customers around the world that they resist the American government.”

The decision is expected to be announced in June.

For more on the case, see http://www.scotusblog.com/case-files/cases/united-states-v-microsoft-corp/