US Supremes take a look at Microsoft's Irish email slurp battle, and yeah, not a great start

Unless you're rooting for the American government

The battle between the American government and Microsoft over emails on an Irish server has reached the US Supreme Court – and so far, the judges seem wary of Redmond's position.

Essentially, back in 2014, the Feds went to a court in New York for a search warrant to demand Microsoft hand over an enterprise customer's Office 365 messages held on a cloud box in Ireland. Redmond reckoned the prosecutors should have asked a court in Dublin for the overseas information, and repeatedly refused to play ball.

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After various rounds of appeals, the legal war rolled into America's highest court, with a decision set to be handed down in June.

Microsoft is seeking protection from US-issued search warrants on private data held in data centers overseas, while Uncle Sam argues US-based corporations should be compelled by US courts, under the Stored Communications Act, to cough up files, regardless of where they are stored.

The Supremes' early opinions on the matter were released to the public on Tuesday. The transcripts revealed two of the nine justices were particularly scathing of Redmond's claim that the US government cannot lawfully demand access to data stored outside America's borders. The others showed varying levels of concern.

Jurisdiction

The reason for the skepticism? Because it's easy for Microsoft, and other web giants, to move files around the internet. One day, someone's messages and documents could be in Ireland, the next in California, or Canada. And at all times, the data can be accessed by staff in the US.

Justice Samuel Alito said files stored in a data center operated by a US business in another country are therefore not necessarily exclusively under the jurisdiction of that nation.

"I guess the point is when we're talking about this information, which, all right, yes, it physically exists on one or more computers somewhere, but it doesn't have a presence anyplace in the sense that a physical object has a presence someplace," Justice Alito said.

"And the internet service providers can put it anywhere they want and move it around at will. The whole idea of territoriality is strained."

Chief Justice John Roberts went on to question whether Microsoft and other service providers simply wished to use the sought-after legal protection as a selling point for their cloud and email services.

"You might gain customers if you can assure them, no matter what happens, the government won't be able to get access to their emails," he told Microsoft's lawyers.

Other members of the top court suggested they may not even have to set a legal precedent in deciding the matter: regardless of their final decision, lawmakers could settle the situation once and for all with new law that weighs up everyone's interests and supersedes the 1980s Stored Communications Act.

Justice Ruth Bader Ginsburg left the door open for Congress to step in and legislate a longterm solution to the problem, which is what politicians are admittedly trying to do with the Cloud Act.

"There are good arguments that can be made either way, but a court can say either you are right, all right, or the other side is all right, and there's nothing nuanced about it," Ginsburg said.

"If Congress takes a look at this, realizing that much time and -- and innovation has occurred since 1986, it can write a statute that takes account of various interests. And it isn't just all or nothing."

You can find more analysis of the transcripts and Monday's Supreme Court hearing here, by Andrew Keane Woods, an assistant professor at the University of Kentucky College of Law. ®




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